SZNTC v Minister for Immigration

[2009] FMCA 1073

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNTC v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1073

MIGRATION – Review of decision of Refugee Review Tribunal – whether a mistaken conclusion or erroneous finding constitutes jurisdictional error – distinction between wrong finding of fact and erroneous finding or mistaken conclusion – Tribunal not bound to accept factual claims – applicant seeking impermissible merits review – findings open to Tribunal on what was before it – Tribunal’s findings not irrational or so unreasonable that no reasonable person could have made it – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), s.91R

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437
Chan Yee Kin V Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379; (1989) 87 ALR 412; (1989) 63 ALJR 561
Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Anthony David Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46
Abebe v the Commonwealth of Australia (1999) 197 CLR 510
Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
NABE v Minister for Immigration Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA26
Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140
Tickner v Chapman (1995) 57 FCR 451 at 462
Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v Rajalingham [1999] FCA 719; (1999) 93 FCR 220
SAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 65
Selliah v Minister for Immigration [1999] FCA 615
Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55; (2000) 204 CLR 1
Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288
Associated Provincial Pictures Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Gamaethige v Minister for Immigration [2001] FCA 565; (2001) 183 ALR 59
NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235
NAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 354
VQAD v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 481
NBFP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 95
SZCBT v Minister for Immigration & Multicultural Affairs [2007] FCA 9
NACB of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 140

Applicant: SZNTC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1667 of 2009

Judgment of: Nicholls FM

Hearing date: 21 September 2009

Date of Last Submission: 21 September 2009

Delivered at: Sydney

Delivered on: 23 November 2009

REPRESENTATION

Appearing for the Applicant: Mr L Gorham

Solicitors for the Applicant: -

Appearing for the Respondents: Ms K Hooper

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application dated 14 July 2009, and amended 14 September 2009, is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $4,700.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1667 of 2009

SZNTC

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 14 July 2009, and amended on 14 September 2009, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 15 June 2009, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.

Background

1. The applicant is a national of India who arrived in Australia on

   
   

   18 November 2008. He applied for a protection visa on

   
   

   17 December 2008. (See Court Book “CB”. The application is reproduced at CB 1 to CB 34, with annexure.)

Claims to protection

1. The applicant’s claims to protection were initially set out in a document (reproduced at CB 37 to CB 38) and in a statutory declaration, which was sent to the Minister’s department on 2 March 2009 (reproduced at CB 63 to CB 65).  

2. The applicant claimed to fear harm from extreme Hindus, and particularly, from a Hindu associated political party, the Rashtriya Swayamsevak Sangham (“RSS”). He claimed to be targeted because of his religion as a Christian Catholic, his membership of the Congress Party, his volunteer work, and because he was in competition with a member of the RSS for a position on a “literacy campaign”. He claimed that members of the RSS harassed him, and his family, drove a car and hit him while on his motorcycle in 2004, and that they beat him in 2007.

3. He claimed to have entered into a relationship with a young Hindu woman (“the Hindu woman”) in 2008, who had relatives who were involved in politics and supported extreme Hinduism. He was targeted by the RSS because of this.

4. While the initial problems were “forgotten”, and he reached an agreement with the RSS to “let bygones be bygones”, his relationship with the Hindu woman revived the conflict. The RSS “hounded” him and the Hindu woman, eventually taking her away. He heard that she had been killed, and that they wanted to kill him.

The Delegate

1. The delegate rejected the bulk of the applicant’s claims because there were: “…a number of factors which raise significant doubt as to the veracity of the applicant’s claims” (CB 88.8). The delegate did not accept that either of the attacks occurred and disbelieved aspects of his account of his relationship with the Hindu woman. Ultimately the delegate concluded that the applicant did not have a well founded fear of Convention related persecution (CB 76 to CB 92).

The Tribunal

1. The applicant appeared at a hearing before the Tribunal on 5 June 2009. The Tribunal’s account of what occurred is set out in its decision record (see [43] at CB 151 to [72] at CB 155)

2. The Tribunal accepted the applicant’s account of being harmed on two separate occasions. However, in relation to the collision between a car and the applicant’s motorcycle in 2004, it found that it was “isolated and unrelated to a campaign of persecution against him” ([79] at CB 156). In relation to the incident where RSS members beat him in 2007, it found that “this was a minor incident and that the applicant himself did not regard it as constituting either ‘serious harm’ or systematic and discriminatory conduct” ([81] at CB 157).

3. While the Tribunal “had some doubts” as to whether he had ever been in a relationship with a Hindu woman, it considered that there was a “possibility” that he had. But it found that it did not accept that she was related to a prominent political figure nor, consequently, that her family or the RSS would target him because of such a relationship ([84] at CB 158).

4. The Tribunal found that, ultimately, by the time of his departure from India the applicant did not have a well founded fear of serious harm by the RSS for any Convention reason. Further, that the state of Kerala provided a “peaceful and tolerant” environment for Christians. Nor was there any reason that the RSS “might be newly motivated to target” him on return ([85] at CB 158).

5. On this basis, the Tribunal concluded that it was not satisfied that the applicant had a well-founded fear of persecution for any of the Convention reasons.

Before the Court

1. At the hearing before the Court Mr L Gorham of counsel appeared for the applicant. Ms K Hooper appeared for the first respondent.

2. The applicant’s counsel sought leave to file an amended application, and written submissions in support. This was not opposed, and leave was granted. The Minister had already filed written submissions, and further written submissions in anticipation.

The Application

1. The grounds to the amended application are as follows.

   “1. The Tribunal failed to consider whether the Applicant’s fear of persecution was ‘well founded’ within the meaning of Art 1A(2) of the Refugees Convention as amended by the Refugees Protocol.

   2. The Tribunal’s finding at [84] that there was nothing beyond the Applicant’s speculation that [the Hindu woman’s] family might wish to harm him, or that her family had any association with the RSS was irrational, or so unreasonable that no reasonable Tribunal could have so found.

   3. In considering at [85] whether there was any reason why members of the RSS might be ‘newly motivated’ to target [the applicant] if he returns to India, the Tribunal took into account an irrelevant consideration.

   4. On the facts found by the Tribunal at [83] and [84], the Tribunal could not rationally, or alternatively could not by a correct application of Art 1A(2), have concluded at [87] that there was not a real chance of the Applicant being seriously harmed by members of [the Hindu woman’s] family.”

2. Mr Gorham submitted that the applicant did not press ground three

Basis for the Applicant’s Complaints About the Tribunal’s Decision

1. All of the applicant’s grounds rely on a number of specific claims made by the applicant, and subsequent findings made by the Tribunal. These were enumerated in written submissions and referred to in oral submissions (with reference to relevant paragraphs in the Tribunal’s decision record):

   1)The Tribunal accepted the applicant was of the Catholic religion. (The submissions refer to [45], this was part of the report of the hearing. The actual finding is at [76].)

   2)The Tribunal accepted that in 2004 the applicant was in dispute with a supporter of the RSS (a Hindu extremist party) over an employment position, and that there was some ill feeling between the two ([77]).

   3)From that time the applicant came to be persecuted by the RSS because of his religious and political views (oral submissions only).

   4)The Tribunal accepted that in 2004 the applicant was involved in an accident where the motorcycle on which he was riding was hit from behind by a car “containing” Hindus ([79]).

   5)The applicant notes and complains that the Tribunal described this as “an unfortunate coincidence” and that even if the car contained RSS supporters this “incident” was unrelated to a persecutory campaign against him ([79] – [80]).

   6)The Tribunal accepted that in 2007 the applicant was attacked by RSS activists ([81]).

   7)The applicant complains that the Tribunal found this to be “a minor incident” and that the applicant himself did not regard it as constituting either “serious harm” or “systematic and discriminatory conduct” ([81]).

   8)The Tribunal accepted the possibility that the applicant had entered into a relationship with a young Hindu woman in 2008 ([83]).

   9)The Tribunal accepted that in Gujarat State, where the young Hindu woman came from, a nationalist Hindu government encouraged an atmosphere of intolerance towards non-Hindus. Further, it accepted that, since 2002, there were reports that the Gujarat police force was corrupt, was highly politicised, and acted in support of the Hindu nationalist movement ([83]).

   10)The Tribunal accepted that the applicant believed that the young Hindu woman was the niece of an important Hindu figure, but did not accept that belief to be correct. The applicant’s submission is that it did not find that it was “incorrect” ([57]).

   11)The Tribunal accepted that the applicant had received a telephone call from a friend of the young Hindu woman, in which he was informed of her death and told to be careful ([48], [62], and [84]).

   12)The Tribunal accepted that he obtained an airline ticket on the same day he received the call ([61] This was part of the Tribunal’s report of the hearing as to his evidence. It was not a finding relevant to the review).

2. The thrust of the applicant’s case before the Court is that, having accepted all of these “facts”, it was a “mistake” (a failure to properly consider whether the fear was well founded) on the part of the Tribunal to find that the applicant’s fear was not well founded (Ground One, and in part Ground Four).

3. Further, in relation to one set of facts, it was not rational of the Tribunal, or alternatively, it was an incorrect application of Article 1A(2) of the Refugees Convention, to reach the conclusion that there was not a real chance that the applicant would be seriously harmed by members of the Hindu woman’s family (Ground Four).

4. Even further, that the Tribunal’s finding that there was nothing beyond the applicant’s “speculation” that the Hindu woman’s family might wish to harm him, or that her family had any association with a Hindu political party, was irrational or unreasonable, such that no reasonable Tribunal could have made such findings (Ground Two).

Relevant to the Consideration

1. In my view, when the applicant’s grounds are properly understood in light of submissions, on any plain reading of the Tribunal’s decision record, they do not rise above a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”) at 272).

2. By way of general preliminary argument, the applicant relies on Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 (“Randhawa”) at 451 for the proposition that: “…in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for…”.

3. In submissions, however, Mr Gorham made no mention of what Beaumont J., also went on to say in the very same paragraph that he quotes from: “This should not, however, lead to ‘an uncritical acceptance of any and all allegations made by suppliants’” (at 451(E)).

4. At that part of the judgement, the Court was concerned with the burden of proof in relation to the question of Convention persecution, and as to how the concept of the “benefit of the doubt” (derived from the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status – see at 451(F)) was placed in the balance between the need for a “liberal attitude” and not having to uncritically accept any and all of what the applicant says.

5. In the current case, the submissions postulate that a more “liberal attitude” on the part of the Tribunal, in light of the factual findings that it made (as set out above), should have led the Tribunal to conclude that the applicant’s fear of persecution was well founded. That it did not do so reveals a failure to properly consider the applicants fear, and was irrational or unreasonable.

6. It is well to be reminded that the statutory regime in relation to protection visas is, relevantly, that to be derived from s.65 and s.36(2) of the Act.

7. That is, that before a visa must be granted, the Tribunal (in effect) must reach a requisite level of satisfaction that the applicant meets the definition of “refugee” as set out in Article 1A(2) of the UN Convention Relating to the Status of Refugees (“the Convention”). If the Tribunal is unable to reach this level of satisfaction, then the visa must be refused.

8. Article 1A(2) of the Convention posits, in part, that, in effect, and relevantly, “refugee” shall apply to any 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…” (see also paragraph 34 of the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status, reedited Geneva January 1992).

9. As the applicant’s submissions state (see paragraph [9] of the written submissions), the test for determining a well founded fear of persecution was set out by the High Court in Chan Yee Kin V Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379; (1989) 87 ALR 412; (1989) 63 ALJR 561 (“Chan”). The applicant says the test is satisfied if the applicant has: “a genuine fear founded upon a ‘real chance’ of persecution for a Convention stipulated reason…”.

10. What the applicant’s submissions failed to address is that the High Court also held that the concept of a “well founded fear” involves both a subjective, and an objective element. As Dawson J stated (at 396):

    “The phrase ‘well-founded fear of being persecuted’ has occasioned some difference of opinion in the interpretation of the relevant Article of the Convention. Upon any view, the phrase contains both a subjective and an objective requirement. There must be a state of mind – fear of being persecuted - and a basis – well-founded - for that fear. Whilst there must be fear of being persecuted, it must not all be in the mind, there must be a sufficient foundation for that fear…” (see also Wu Shan Liang at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ).

11. The applicant’s complaint now relies in part on the assertion that the applicant believed that he had a well founded fear of persecution because he had received a telephone call from a friend of the young Hindu woman, who told him that she was dead. That he fled India as soon as possible after the phone call. Further, that this must be seen in light of “facts” found by the Tribunal that he had previously been the victim of religious persecution, his belief that the Hindu woman was a niece of a political powerful Hindu figure who persecuted Christians, that this latter was supported by country information, and his belief that he might be killed because of his recent experiences.

12. To the extent that this submission seeks to imply, or infer, that the applicant’s belief on its own is sufficient to satisfy the relevant Convention test, then this must be rejected.

13. What is relevant is whether the Tribunal could reach the requisite level of satisfaction that, on the facts found, the applicant had a well founded fear of persecution for a Convention reason if he were to return to India in the foreseeable future.

Ground One and Ground Four in Part

1. Ground one proposes that, on the findings made by the Tribunal, it should have been satisfied as against the relevant test and, that it was an error or a mistake on the part of the Tribunal not to have done so.

2. Mr Gorham referred the Court to Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 (“Yusuf”), and submitted that in Yusuf the High Court accepted “the definition of jurisdictional error” propounded in Anthony David Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163 (“Craig”). He submitted that this “definition” included that, if the Tribunal were to “make an erroneous finding or to reach a mistaken conclusion”, this would mean that the Tribunal would fall into jurisdictional error. He further submitted that this “statement” was accepted recently by a Full Federal Court in SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 (“SZMCD”).

3. No copies of these cases were handed up. Nor was reference made to any specific part of these judgements (no criticism is implied). I assume however that Mr Gorham referred the Court to Craig at 179, Yusuf at 351, and SZMCD at [120].

4. The applicant’s point, therefore, is that, with reference to grounds one and four, on the facts found by the Tribunal, the Tribunal’s subsequent conclusion that the applicant’s claimed fear of persecutory harm if he were to return to India was not well founded, was a mistaken conclusion, or an erroneous finding, and on the authorities relied on above this constituted jurisdictional error.

1. The Minister submits (see [15] of the written submissions) that: “there is no error of law…in the decision-maker simply making a wrong finding of fact” (Abebe v the Commonwealth of Australia (1999) 197 CLR 510 (“Abebe”) at [137]) (see also Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 77 per Brennan J and Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 35 - 36 per Brennan J).

2. There is, in my view, a distinction to be drawn between a wrong finding of fact, and an erroneous finding or “mistaken” conclusion which affects the Tribunal’s exercise, or purported exercise, of its power, in circumstances where such an error is said to be jurisdictional error.

3. It is the latter that the applicant relies on. In my view, what was said in Abebe, therefore, is not a complete answer to the applicant’s complaint.

4. The issue then, is whether there was an erroneous finding or, more pointedly in the current case, as I understand the applicant’s complaint, a “mistaken” conclusion arising from the facts found by the Tribunal (see in context of what was submitted as set out at [17] above).

5. The Tribunal accepted that in 2004 there had been a dispute over an employment position between the applicant and a supporter of a Hindu nationalist party, and that there had been “some ill feeling” between the two ([77]).

6. On the material before the Court, it is not correct to say, as the applicant now asserts, that the Tribunal found that from that time he came to be persecuted because of his religious and political views. This may have been implicit in the applicant’s claims. But no such finding was made by the Tribunal such that the applicant can rely on any such finding to now argue that the Tribunal’s conclusion that there was a well founded fear of persecution was “mistaken”.

7. What the Tribunal did find was that it accepted that the applicant was an adherent of the Catholic faith, but found on the applicant’s own evidence that he experienced no problems with Hindu extremists prior to 2004. 

8. The applicant also claimed that, in that year in Kerala, he was injured when the motorbike on which he was riding was hit by a car. The applicant claimed that the occupants of the car were Hindu extremists.

9. The Tribunal’s consideration of this incident is set out in its decision record at [79] – [80] (CB 156 to CB 157). It is explicit in the Tribunal’s analysis that it accepted that the incident occurred.

10. However the Tribunal reasoned:

    1)The accident was “highly unlikely” to have been premeditated, because the occupants would not have known that he would be passing at that location “at that particular moment”.

    2)There was a Hindu festival taking place at that time and, in that sense, it was “an unfortunate coincidence” that the occupants were Hindu.

    3)Even if they were members of the RSS, in the circumstances it was an isolated incident and “unrelated to a campaign of persecution against him”.

    4)The Tribunal was further persuaded to this view by the applicant’s evidence that, from 2004 (the time of the incident) until he came to Australia in 2008, he lived in a “single village in Kerala”, and would have been easily located at that place.

    5)The Tribunal described the applicant’s explanations as to why police subsequently included the car’s registration number in a relevant report as “no more than mere speculation”. (The applicant’s explanations are set out at [52] of the Tribunal’s decision record).

11. The applicant also claimed that he had been attacked by RSS activists in Pondicherry in 2007. The Tribunal’s analysis was:

    1)It drew no adverse inference about the plausibility of the claim, given some inconsistency in the applicant’s relevant evidence.

    2)It considered that the applicant’s own evidence that the assailants “effectively apologised afterwards”, that he continued to live a “peaceful life”, and that he made no claim to have reported this incident to police, led to its being satisfied that this was a “minor incident”. Further, that the applicant’s evidence was such that (even) he did not consider it to constitute either “serious harm” or “systematic and discriminatory conduct”.

12. The applicant also claimed that he had entered into a relationship with a young Hindu woman who came from Gujurat in 2008. The Tribunal understood that the applicant’s claim in this regard was that this might lead to his being seriously harmed in the future. [It should be noted that the applicant’s evidence before the Tribunal was that from 2004 until he came to Australia in 2008 he lived in a “single village in Kerala” (see [79] at CB 156).]

13. The Tribunal reasoned:

    1)It had some doubts that the applicant had embarked on this relationship given his devout Catholicism, his marriage, and that living in such a “de facto” relationship was outside the relevant norms of behaviour in India, and the applicant’s contradictory evidence about where he was living in 2008.

    2)Nevertheless the Tribunal allowed for the possibility that he had entered into such a relationship.

    3)Noted the applicant’s claims that the ill feeling of the RSS members would be exacerbated because of this young woman’s relationship with a prominent Hindu figure.

    4)Accepted that the Hindu nationalist government of Gujarat had been accused of encouraging an atmosphere of intolerance towards non-Hindus.

    5)But noted that, based on the applicant’s own evidence, there was nothing more than the young woman’s reported assertion to him that she was related to this prominent figure, and that the applicant conceded that he did not know if this claim was true.

    6)The Tribunal reasoned that, while the applicant had received a telephone call from a friend of the Hindu woman, warning him “to be careful”, nothing had happened in the intervening time to indicate that anyone associated with her had any interest in locating him, let alone harming him. Nor had the applicant’s wife reported that anyone was looking for him in the six months since he was told that the young woman had died.

    7)

    The Tribunal concluded therefore that, even if the applicant did have a relationship with a young Hindu woman, there was

    
    

    “… nothing beyond his own speculation that her family might wish to harm him or that her family had any association with the RSS”.

14. The Tribunal’s ultimate conclusion therefore is as expressed at [85]:

    “In other words, at the time he left India he did not have a well-founded fear of being seriously harmed by members of the RSS because of his religion, political opinions, membership of a particular social group or any other reason and is the tribunal considers reliable the evidence from other sources above that Kerala continues to provide a ‘peaceful and tolerant’ environment for Christians, there appears to be no reason by members of the RSS might be newly motivated to target (the applicant) if he returns to India”.

15. Part of the task facing the Tribunal in conducting the review is to properly understand and apply the relevant test. This is, relevantly, whether the applicant has a well founded fear of Convention related persecution if he were to return to India.

16. The Tribunal is required to consider all of an applicant’s claims, including each integer of the claim, and to consider all claims that may be said to clearly arise from the circumstances presented (Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 (“Htun”) at [42] per Allsop J, with whom Spender J agreed. See also NABE v Minister for Immigration Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263 per Black CJ, French and Selway JJ (“NABE”), with reference to Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA26).

17. In my view, any plain reading of the Tribunal’s decision record reveals that it well understood the relevant test, and, on the evidence presented to it, considered each of the applicant’s claims to fear persecutory harm.

18. Such consideration requires the Tribunal to engage in an “active intellectual process” (see for example as stated by the Full Federal Court in Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 and the reference at [48] to Tickner v Chapman (1995) 57 FCR 451 at 462).

19. It must be said that the applicant’s submissions, as to the relevant findings by the Tribunal, were selective in relying on, or emphasising, some of the findings, but omitting others, and remaining silent on, or selectively reading, the Tribunal’s reasoning leading to some of the conclusions complained about now. That the applicant made certain factual claims does not mean the Tribunal is bound to accept them or should have accepted them. The latter, in particular, calls for impermissible merits review by the Court.

20. In my view, the Tribunal gave cogent and comprehensive reasons for its ultimate conclusion. It gave explanations for its findings in relation to each subset of the applicant’s claims. These were findings that were open to the Tribunal to make on what was before it.

21. The applicant complains that the Tribunal did not adopt a “liberal attitude”. I understood this to be further explained with reference to Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 (“Guo”) at 576:

    “It is true that, in determining whether there is a real chance that an event will occur or will occur for particular reason, the degree of probability that similar events have or not have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event will or the reason will occur in the future” (see paragraph [5] of the applicants written submissions.

22. But see also what follows:

    “If, for example, a Tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution”.

23. The applicant’s argument that the Tribunal’s acceptance that some events had occurred in the past and therefore, it is reasonable to conclude that they will occur in the future, thereby revealing a “mistaken” conclusion on the part of the Tribunal when it failed to do so, must be rejected.

24. The Tribunal’s findings, when seen in their totality and when read in light of the Tribunal’s explanation and consideration, reveals quite plainly why the Tribunal concluded that, notwithstanding that some events claimed had occurred, when seen in the context of the totality of the evidence before it, most of which was the applicant’s own evidence, it was in a position where it could not be satisfied that the applicant’s claimed fear was well founded when he left India. In the absence of any other subsequent relevant factors, meant it could not be otherwise satisfied as to the situation if he were to return.

25. The applicant’s claim that the Tribunal did not adopt a “liberal” attitude must also be rejected. In Guo the High Court considered the very issue of fact-finding, and the application of the real chance test, which is at the very heart of the applicant’s case now (especially in relation to grounds one and four).

26. The extract from Guo quoted above (at [59]) encapsulates what has commonly come to be known as the “what if I am wrong test”. (See also Wu Shan Liang and Abebe and Minister for Immigration and Multicultural Affairs v Rajalingham [1999] FCA 719; (1999) 93 FCR 220 per Sackville J with whom North J agreed.) In essence, where a Tribunal’s factual finding is attached with such doubt (“slightly more probable than not”) then the Tribunal must consider the possibility that the event alleged did in fact occur.

27. But whatever the case as to what the applicant asserts now, a failure to adopt a more “liberal” attitude, a failure to give the benefit of the doubt, or a failure to apply the “what if I am wrong test”, a plain reading of the Tribunal’s decision record reveals that such complaints are not well founded.

28. The Tribunal had doubts that the applicant had ever entered into the claimed relationship with the young Hindu woman. It gave cogent and probative reasons for these doubts, doubts which arose in part because of the contradictions in the applicant’s own evidence. Yet the Tribunal proceeded to consider the applicant’s claims on the basis that he had entered into the relationship.

29. The applicant also submits that the Tribunal did not find him to be a person of questionable credibility, and therefore, in circumstances where it accepted that certain events had occurred as found at [83], and in light of information available about the government and police, would “surely” lead to support the claims of a well founded fear of persecution.

30. Even without the selective and incomplete choice of facts as found by the Tribunal, this complaint is a classic request for impermissible merits review (Wu Shan Liang).

31. Something further must also be said about the applicant’s complaint that the balance of evidence before the Tribunal should have led to a conclusion that the applicant had a well founded fear of persecution, and that the claim was not mere “speculation”.

32. To the extent that this is a complaint that the Tribunal’s ultimate conclusion was itself speculative, this must be rejected.

33. There is clear authority that the relevant test, of course, is not one of speculation, but whether the requisite level of satisfaction is reached that the applicant has a well founded fear of persecution for a Convention reason on the facts found. That is, that there is no more than a remote chance that persecutory harm would occur on return to the country of claimed persecution.

34. In Guo at 572 to the High Court said:

    “…Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is ‘well-founded’ when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation”.

35. The word “speculation” which draws the applicant’s complaint, is found in the Tribunal’s analysis at [84] (CB 158).

36. The full paragraph reads:

    “However during a lengthy hearing with [the applicant] it became apparent that there is no more than the young woman’s assertion that she was related to [the prominent political leader] and, further, [the applicant] conceded to the Tribunal that he himself did not know if that assertion was true. In addition, apart from a phone call from a friend of hers warning him to ‘be careful’, nothing has since happened that might indicate anyone associated with her has any interest in locating him, let alone harming him. As he told the Tribunal, his wife would have told him if anyone had been making enquiries about him at his home. She has not done so in the six months since [the applicant] was told the young woman had died. Therefore, if [the applicant] did have a relationship with the young woman, there is nothing beyond his own speculation that her family might wish to harm him, or that her family has any association with the RSS”. [Emphasis added.]

37. A number of comments arise. First, the use of this word does not in any way rise to a concern that the Tribunal was “speculative” in the making of its ultimate conclusion.

38. Second, the use of this word was plainly a description of one part of the applicant’s evidence, relating to his claimed fear, as it was said to arise from his claimed relationship with the Hindu woman.

39. Despite its doubts, the Tribunal proceeded on the basis that the applicant had entered into the relationship. It then turned to consider the claim that the ill feeling that members of the RSS might have had towards him would be exacerbated because of the young woman’s claimed relationship with a prominent leader of the nationalist Hindu party. It was this factor that the applicant claimed put him at risk of serious harm.

40. In its analysis the Tribunal looked at country information and accepted that the state government (Gujurat), led by this person, had been accused of fostering an atmosphere of intolerance against non-Hindus.

41. But, and this is a very big but, given the applicant’s selective approach now to the relevant facts found by the Tribunal, the Tribunal’s assessment of the applicant’s evidence given at a “lengthy hearing” (the hearing was nearly of 2 1/2 hours duration – see CB to 131) was that:

    1)There was “no more” than the young woman’s assertion that she was related to the high-profile political leader.

    2)The applicant’s evidence was that he did not know if this assertion was true.

    3)Other than the claimed telephone call from the woman’s friend, nothing had happened to the applicant since that might indicate that anyone associated with her had any interest in him, let alone in harming him.

    4)The applicant’s own evidence was that, if there had been anyone making enquiries at his house in the six months after the young woman’s death, his wife would have told him.

42. It is in this context that the Tribunal reasoned that what was left of the applicant’s claim that because of this relationship he would face serious harm, was only the applicant’s “speculation” that this was the case.

43. On what was before it, this finding was plainly open to the Tribunal to make. It was not a finding that the Tribunal was speculating as to the chance of harm on return, but it was a description of the applicant’s own evidence.

44. Further, that there was independent country information that there was an atmosphere of encouraging social intolerance towards non-Hindus is one thing, but that the Tribunal found on balance that, notwithstanding such evidence, the applicant’s own evidence was such that, even in that context, it was his own speculation that he would suffer serious harm, was quintessentially an example of the choice, weight and use that country information is to be put to, and is a choice for the Tribunal alone to make. It is not for the applicant, or his counsel, or indeed this Court, to say that that country information would “surely” lead to serious harm on return in circumstances where the Tribunal’s reasoning leads to a contrary finding open to it to make on what was before it.

45. The Tribunal also used the word “speculation” at [80]:

    “As to the issue of the registration number of the car having been included in the first information report provided by [the applicant] to the police after the accident, he gave oral evidence that he was not the source of that registration number and that the police had incorporated it into the report. He suggested some reasons for their having done so which, in the Tribunal’s view, was no more than speculation. The Tribunal is unable to establish why the number was incorporated into the report but, whatever the reason, as noted above has accepted that the accident itself occurred.” [Emphasis added.]

46. This part of the Tribunal’s reasoning relates to the motorbike incident in Kerala in 2004. The Tribunal accepted that the applicant’s motorbike had been struck. It did not accept, however, that the incident was part of a “campaign of persecution against him”. Again this was open to the Tribunal on what was before it.

47. Before the delegate the applicant had provided a translation of a “First Information Report” (“FIR”) in which it appeared the applicant had given the registration number to the police (see CB 89.5).

48. Before the Tribunal the applicant gave evidence that the police had included the registration number of the car in the FIR. He said he was not the source of the registration number. He gave various possible reasons as to why the number was included by the police (see [52] at CB 152).

1. The Tribunal described these possible reasons as “no more than speculation” on the applicant’s part.

2. Again this was open to the Tribunal on what was before it. This was also a description of the applicant’s evidence, not speculation on the Tribunal’s part as to the motives of the police.

3. I also note in terms of the applicant’s complaint now that the Tribunal did not adopt a more “liberal” approach, the delegate found the applicant’s claims in relation to this incident as “internally inconsistent and changed a number of times” (CB 89.7). Before the delegate the applicant appeared to say that he had provided the registration number. The delegate noted that he “provided no explanation as to how he obtained the registration number of the car” (CB 89.6). The delegate found that he did “not accept that the applicant was rammed by a car driven by RSS activists” (CB 89.8).

4. The Tribunal accepted that the accident has occurred, but found it to have been unrelated to a campaign of persecution against him ([79] at CB 156). In relation to who provided the registration number, it was clearly open to the Tribunal given the inconsistent evidence and the change in the applicant’s evidence from what he had told the delegate to have made some adverse finding as to the applicant’s credibility given the change in his evidence.

5. It did not do so. I would suggest that this is an example of the very “liberal” attitude that the applicant now says the Tribunal denied to him.

6. Mr Gorham also referred the Court to Chan at 430 (per McHugh J):

   “…A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, she is ‘being persecuted’ for the purposes of the Convention …”.

7. As I understood the submission, it is that, in the current case, it was not even just a single act of oppression, but, with reference to the facts found by the Tribunal, there were a number of events over time that should have led the Tribunal to find that the fear was well founded.

8. Again for the reasons already set out above, this, in the circumstances, is an attempt by the applicant to obtain the Court’s substitution of its own findings for those of the Tribunal as to the merits of his refugee claim. This the Court is unable to do.

9. Explicit in both written and oral submissions was the applicant’s argument that either it must be “surely” concluded from the facts found that the applicant’s fear was well founded, or that the applicant himself has come to the conclusion that he is under threat of “serious harm”.

10. As to the former, for the reasons already advanced above, that part of the argument does not assist the applicant now.

11. As to the latter, whatever conclusion the applicant, or his lawyer, may have reached is irrelevant. It is the conclusion of the Tribunal which is the focus of consideration before the Court now.

12. The test for determining whether a fear is well founded was certainly enunciated by the High Court in Chan, as submitted by Mr Gorham. In part, however, the applicant’s submissions appeared to ignore that the High Court held that the concept of a well founded fear includes both a subjective and objective element. (See for example per Dawson J at 396. See also Wu Shan Liang at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.)

13. While the subjective element which contains the state of mind of the applicant, and whether the applicant has a fear, is not to be ignored, it is plainly not conclusive as to the question of whether a fear is well founded, as the applicant’s submissions infer.

14. Contrary to what is implied now by the applicant, the Tribunal is entitled to consider whether the applicant objectively has a well founded fear of persecution before examining whether the applicant subjectively holds such a fear. It is the case also that, where the Tribunal finds that there is no objective basis for the applicant’s fear, there is no obligation to consider whether the applicant nonetheless holds a subjective fear. (See for example SAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 65, particularly at [38] and Selliah v Minister for Immigration [1999] FCA 615 at [40].)

15. What is further to be derived from Chan, contrary to the limited analysis by the applicant now, is that the Convention phrase of “well founded” is what adds the objective element to the requirement that an applicant must hold a fear.

16. It is important, in light of the applicant’s submissions that he has come to the conclusion that his fear is well founded, to note what the High Court further said in Chan: 

    1. per McHugh J at 429: “Courts, writers and the UNHCR Handbook agree, however, that a ‘well-founded fear’ requires an objective examination of the facts to determine whether the fear is justified…”.

    2. per Dawson J at 396: “The phrase ‘well-founded fear of being persecuted’ has occasioned some difference of opinion in the interpretation of the relevant Article of the Convention. Upon any view, the phrase contains both a subjective and an objective requirement. There must be a state of mind – fear of being persecuted – and a basis – well-founded – for that fear. Whilst there must be fear of being persecuted, it must not all be in the mind, there must be a sufficient foundation for that fear…”.

    3. per Toohey J at 406: “The use of the adjectival expression ‘well-founded’ must be taken as qualifying in some way the ‘fear of persecution’. It is hard to conceive of a fear which has no objective foundation at all as well-founded, no matter how genuine the fear might be. If the test were entirely subjective, the expression ‘well-founded’ would serve no useful purpose…”.

    4. per Gaudron J at 412: “The Convention, in speaking of ‘well-founded fear of being persecuted’, posits that there should be a factual basis for that fear. The words ‘well-founded fear’ do not, as a matter of ordinary language, convey any precise relationship between fear and its factual basis. In the exercise of judicial power there is a natural tendency to invest an expression such as ‘well-founded fear’ with some degree of specificity…”.

17. The applicant’s submissions rely, albeit selectively, on past events said to have been found by the Tribunal, to argue that this establishes that it is likely that he will suffer Convention related persecution if he returns to India in the near future.

18. In this regard, I note what was also said in Guo (at 574-5):

    “The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low - of their recurrence. To the extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purpose,s it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.

    Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events…”.

19. As to these past events, in the current case the Tribunal relied on the applicant’s own evidence that he experienced no problems with Hindu extremists before 2004. As already set out above, the incident in March 2004 was found to be isolated and unrelated to a campaign of persecution against him. The incident in Pondicherry in 2007 was found to be minor, a finding supported by the applicant’s own evidence to the Tribunal that he himself did not regard it as constituting serious harm, or systematic or discriminatory conduct.

20. As to his relationship with the young Hindu woman, what was left of that claim was said to be speculation on the part of the applicant, as to whether anyone would seek to harm him because of the relationship.

21. No amount of hyperbole or rhetoric on the part of the applicant’s counsel now can hide the fact that the Tribunal understood and applied the correct test on all the relevant facts as found, and concluded that the claimed fear was not well founded.

22. I cannot see error in what the Tribunal has done in this regard in relation to ground one, and, to the extent relevant, ground four.

Ground Two and Ground Four

1. In ground two, the applicant complains that the Tribunal’s finding that there was nothing beyond speculation that the young woman’s family would wish to harm him, or that they were associated with Hindu extremists, was irrational or so unreasonable that no reasonable person could have made this finding.

2. This overlaps with what, in part, is also claimed in ground four, as it also relates to an assertion that such a finding was irrational. That is that it was irrational of the Tribunal to find that there was not a real chance that he would be harmed by the Hindu woman’s family.

3. In large part, the applicant relies on the same type of argument as in ground one to put forward unreasonableness or irrationality as the basis for the complaint. That is, that the Tribunal made certain factual findings that would reasonably and rationally compel the inference that his fear was well founded. Its failure to do so reveals that the Tribunal was irrational or unreasonable in its ultimate conclusion.

4. The applicant disputes that it was “speculation” that he might be harmed by the Hindu woman’s family. The submissions are that it was not speculation to conclude from the telephone call from the friend that he was in danger of serious harm.

5. Again, the submissions now seek to draw from findings of fact, or even “facts” as put by the applicant, that events in the past occurred, but to put on them a reading, an interpretation and conclusion different to that of the Tribunal. The submission being that the Tribunal’s conclusion was in the circumstances unreasonable or irrational. The applicant again points to the “evidence” before the Tribunal that he was told by the young woman that she was related to a high profile Hindu extremist leader, that he had been told that she had “been taken”, and that he received a telephone call that she was dead.

6. Further, the applicant takes issue with the Tribunal's finding that the attack in 2007 was a “minor incident”, and did not constitute serious harm. The applicant argues that, whether it was a “minor incident” or not, this was still an example of “systematic conduct”, such that it can be described as selective harassment which discriminates against the applicant for a Convention reason. In this regard the applicant relies on Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55; (2000) 204 CLR 1 (Haji Ibrahim).

7. The applicant argues now that the conduct by the Hindu activists in 2007 was deliberate or intentional. He submits that he did not claim before the Tribunal that this was not the case.

8. As I understood the applicant’s primary argument, it is that there is a connection between the deliberate and intentional act of the RSS activists in 2007, and when seen in the light of the connection between various major Hindu organisations (the BJP and the RSS (see the country information at [83] at CB 157)), and further when this is seen in the context of the relationship between the applicant and the young Hindu woman and her family connections, there is more than “speculation” involved. Therefore it was “erroneous” of the Tribunal to suggest otherwise. I understood this error, therefore, to be that it was irrational or unreasonable for the Tribunal to have so concluded.

9. One aspect of the applicant’s submissions is not clear and this requires some comment.

10. At best, I understood the applicant’s written submissions (at [15]) to argue that, at the time of the making of the Tribunal's decision, the applicant held the view that the conduct by the Hindu activists (presumably in 2007) was deliberate or intentional, a view which the applicant: “expressly states to have well founded fears of persecution now”.

11. It must be said that it is not clear what the applicant hopes to achieve at this particular part of his submissions.

12. The applicant asserts that it is: “… his views at the time of the decision that are relevant”, and relies on Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288 in support of that proposition.

13. The issue before the Full Court of the Federal Court in that case (Black CJ, Lee, von Doussa, Sundberg and Mansfield JJ) was:

    “The question raised by the appeal is whether the time at which a person’s application for refugee status is to be assessed is the date on which the application for that status is lodged or the date of the determination of the application” (at 291(C)).

14. The Court held that the relevant time at which an application for refugee status is to be assessed is the date of the determination of the application, not the date on which the application is made (see 293(F)):

    “… the crucial time is the date of determination of the application…”.

15. As I understand it, therefore, the relevance of this authority is not so much what the applicant’s views may have been at the time of the decision, but that the relevant time for the focus of the Tribunal to assess what is before it, is as at the date of the determination of the application, not what was before it at the time the application was lodged.

16. Noting of course what the Court also said (at 294(C)):

    “For ease of discussion these reasons have proceeded on the basis that the choice to be made is between the facts existing at the date of the application and those existing at the date of the determination. In selecting the latter date, it must not be thought that the decision-maker, in determining whether a well-founded fear exists, looks exclusively at the facts that exist at that date…”.

17. In the current case the Tribunal's hearing was held on 5 June 2009. There is no evidence before the Court now, brought by the applicant or otherwise, to challenge the Tribunal's account of what the applicant relevantly said at that date. That is, that the applicant “himself” did not regard it (the incident in 2007) as constituting either “serious harm” or “systematic and discriminatory conduct” (see [81] at CB 157).

18. The date on which the Tribunal determined the application was 15 June 2009. There is no evidence whatsoever before the Court that, in the intervening ten days, the applicant sought to alter, amend or otherwise further explain what he is reported to have told the Tribunal at the hearing ten days earlier in this regard. Whatever the applicant’s views might now be said to have been as at the date of determination, as to whether the incident in 2007 was a “minor incident” or otherwise, or whether the conduct by the Hindu activists was deliberate or intentional, is made without any evidence whatsoever to contradict the Tribunal’s account.

19. The Tribunal proceeded on the most recent relevant evidence that had been provided to it at the hearing by the applicant himself. It may be that, in retrospect, Mr Gorham may wish that the applicant had not given this evidence to the Tribunal, given the Tribunal's conclusion that in part relied on this evidence to describe the incident as “minor”. That is, that its conclusion was confirmed by the applicant’s own evidence to it.

20. Whatever Mr Gorham may say now about what were the applicant’s views as at the date of the Tribunal’s determination, it cannot, by itself, lead to any finding of jurisdictional error on the part of the Tribunal, given that there is no evidence before the Court that the applicant sought to change the evidence that he had given to the Tribunal at the hearing ten days earlier.

21. As to whether the applicant expressly states to have a well founded fear of persecution now is plainly irrelevant in showing jurisdictional error on the part of the Tribunal.

22. The main thrust of the applicant’s complaint is that the chain of reasoning relating to the relationship with the Hindu woman, when seen in the context of the incidents that had occurred to the applicant in the past, was irrational or unreasonable. I understood, in submissions before the Court, that the latter was put with reference to Wednesbury unreasonableness only (Associated Provincial Pictures Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223).

23. Ms Hooper’s submission in reply on this issue is that the applicant again is seeking impermissible merits review. The Court was referred to what was said in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 626 [40] per Gleeson CJ and McHugh J. I note what the Court said:

    “The essence of the suggested illogicality or unreasonableness in the Tribunal's decision, as observed by Hill J, and accepted by Davies and Burchett JJ, although strongly contested by Whitlam J, is said to lie in the process of reasoning by which the Tribunal came to regard the information given by Mr Eshetu as to the December 1991 incident which led to his departure from Ethiopia as implausible. It was considered by Hill J that the Tribunal failed to give sufficient weight to certain information before it, especially information from EHRC, and attached unwarranted importance to the absence of any independent record of the alleged occurrences. Whitlam J was of the view that the reasoning displayed no error. Even if it did, however, there is a serious question whether the suggested error is of a kind to which the Wednesbury privilege is directed. We are not here concerned, for example, with the unreasonable exercise of a discretion, and it is difficult to characterise the Tribunal's decision, even on Hill J’s view of it, as an abuse of power. Someone who disagrees strongly with someone else’s process of reasoning on an issue of fact may express such disagreement by describing the reasoning as ‘illogical’ or ‘unreasonable’, or even ‘so unreasonable that no reasonable person could adopt it’. If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence…”.

24. I agree with the respondent that the applicant’s complaint really is, in light of what is before the Court, no more than an emphatic way of saying that he believes the reasoning to be wrong. In other words, in my view, the applicant, again by way of grounds two and four, seeks impermissible merits review.

25. The Tribunal's unchallenged account of what occurred at the hearing in relation to the applicant’s claimed relationship with the young Hindu woman is set out at [57] to [68] (CB 153 to CB 155). A plain reading of the Tribunal’s account reveals that, on the issue of her claimed relationship to the high profile political leader:

    “The Tribunal told him that it was forming the impression, because of his evidence and the manner in which he was giving it, that he himself strongly doubted that she was related to [the high profile person]” (at [57]).

1. Further at [65]:

   “The Tribunal suggested to him that in fact he did not know if anyone was now interested in locating or harming him. He agreed that this was so. The Tribunal also suggested to him that he did not know the reason why anyone might be interested in locating him. He also agreed with this”.

2. I note further at [66]:

   “The Tribunal told him that it appeared from his evidence that he could have returned to his wife and lived in peace. He claimed that people were looking for him. The Tribunal reminded him that he had said he did not know that. He responded that some people had hit him in Pondicherry. He agreed that that was not because of his relationship with [the Hindu woman]. However her family would have gone to the RSS and got all his particulars, and gone to his office. He then conceded that he did not know if any of these things had happened”

3. At [67]:

   “He told the Tribunal that he was currently in touch with his wife. The Tribunal put to him that, as she had not mentioned anyone coming to the family home asking about him since his arrival in Australia, it appeared that no one was interested in locating him. He agreed that she had not told him of any such visits, and that she would have done so if they had occurred. He added that he came from a Catholic area, and that the RSS and [the young Hindu woman’s] family would not come there. The Tribunal suggested to him that, if so, it seemed he could return to that home in safety. He responded that he was a ‘bit worried because of the silence’”.

4. It is the case that, on any plain reading of the applicant’s evidence given to the Tribunal at the hearing, the applicant’s complaint that it was unreasonable or irrational of the Tribunal to conclude as it did is simply not made out.

5. In my view, given the evidence that was before it, it was clearly open to the Tribunal to find that, in the circumstances presented, and notwithstanding independent country information generally as to the attitude of the government of Gujarat towards non-Hindus, there was nothing beyond the applicant’s speculation that her family might wish to harm him, or even that the family had any association with the Hindu nationalist party in the first place. Such findings were plainly not so unreasonable that no reasonable decision maker could have come to this conclusion in light of the evidence before it. Nor was it irrational of the Tribunal to have so reasoned.

6. I cannot see that it is irrational or unreasonable for the Tribunal to find, in circumstances where, apart from one telephone call from her friend, nothing had happened to the applicant to indicate that anyone associated with her had any interest in locating him, let alone harming him, including evidence that his own wife would have told him if anyone had been making enquiries about him. Nor that it is irrational or unreasonable that in circumstances where there was no more than his claim of her own assertion that she was related to the political leader, an assertion that the applicant himself said he did not know whether it was true or not, to describe what was left of the applicant’s claims as speculation on his part that the family might wish to harm him, or indeed that the family had any association with an extremist Hindu party.

7. To the extent that the applicant now seeks to argue that the phone call from the friend happened against a background of events and circumstances, particularly given the incident of 2007, as supporting the submission that the applicant’s fears were more than just speculation, also does not succeed.

8. First, it is not for the applicant’s counsel now, nor indeed this Court, to make a finding that the conduct by the RSS activist was deliberate or intentional. For the reasons given, the Tribunal found that, on the basis of the applicant’s own evidence, this was a “minor incident”. There is no irrational or illogical aspect to such a finding, given that the applicant’s own evidence (unchallenged by any evidence to the contrary) is reported as being that the assailants “effectively apologised afterwards”, and that he thereafter continued to lead an “otherwise peaceful life working among fishermen”.

9. It is, as the Minister submits, well established that the relevant statutory regime requires the Tribunal to reach the requisite level of satisfaction in relation to an applicant’s claims before the protection visa must be granted. In this process the Tribunal is not required to uncritically accept any, or all, of what an applicant says (see Randhawa at 451-2 per Beaumont J). The difficulty for the applicant’s counsel now is that it was indeed much of what the applicant himself did say to the Tribunal, which the Tribunal seems to have accepted, that led it to its ultimate conclusion in relation to the matters complained of under grounds two and four.

10. I should also note that, as the Minister submits, that there is no error going to jurisdiction even if a wrong finding of fact may be affected by illogicality (see Gamaethige v Minister for Immigration [2001] FCA 565; (2001) 183 ALR 59, NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235, NAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 354 at [27]).

11. The applicant’s reliance now on Haji Ibrahim also does not assist him. The applicant’s complaint in this regard is set out initially at paragraphs [14] to [16] of his written submissions. He complains that at paragraph [81] of its decision record the Tribunal accepted that the applicant had been attacked by RSS activists in 2007. The Tribunal found that this was “a minor incident”. The applicant submits that he, and seemingly the Tribunal, did not regard it as constituting “serious harm” or systematic and discriminatory conduct.

12. The applicant argues that: “Whether or not it was a ‘minor incident’ it was an example of systematic conduct”, which he says means “conduct that is deliberate, premeditated or intentional” such that it is “selective harassment which discriminates against the person concerned for a convention reason” (paragraph [15] of written submissions). It is in this light that he relies on Haji Ibrahim.

13. On its face this submission does not appear to relate to the grounds as pleaded. What was pleaded as being irrational or unreasonable was the Tribunal’s conclusion that there was not a real chance of serious harm from the young Hindu woman’s family (Ground Four) and that there was nothing beyond speculation that they may wish to harm him (Ground Two).

14. In any event it may be that the applicant seeks to “connect” these findings to the earlier finding relating to the claimed attack in 2007, such as to argue that it was unreasonable or irrational to have reached the conclusion about the family in light of the incident in 2007. For the reasons already set out above, such a complaint does not succeed.

15. The reliance on Haji Ibrahim raises a different point, not directly pleaded.

16. The applicant refers to the Tribunal’s analysis at [81]:

    “As to his claim to have been assaulted by RSS activists while en route to his work in the neighbouring state of Pondicherry in early 2007, the Tribunal draws no adverse inference about the plausibility of this claim from the fact that initially in writing he implied it took place in 2006. The year of the assault was not specified in writing. As to whether the incident was indicative of a campaign of harassment of [the applicant], the Tribunal has regard to his evidence that his assailants effectively apologised afterwards, and that, in [the applicant’s] own words, he ‘continued leading [his] otherwise peaceful life working among fishermen’. [The applicant] has claimed that he escaped and does not claim that he reported this incident to the police. Having considered his account, the Tribunal is satisfied that this was a minor incident and that the applicant himself did not regard it as constituting either ‘serious harm’ or systematic and discriminatory conduct.”

17. In Haji Ibrahim, McHugh J (particularly at those parts referred to in the applicant’s submissions [89] – [100]) was concerned with the degree of harm required to constitute persecution for the purposes of the Convention.

18. His Honour stated (relevant to the applicant’s submissions now) as to “systematic conduct”:

    “It is an error to suggest that the use of the expression ‘systematic conduct’ in either Murugasu or Chan was intended to require, as a matter of law, that an applicant had to fear organised or methodical conduct, akin to the atrocities committed by the Nazis in the Second World War. Selective harassment, which discriminates against a person for a Convention reason, is inherent in the notion of persecution. Unsystematic or random acts are non-selective. It is therefore not a prerequisite to obtaining refugee status that a person fears being persecuted on a number of occasions or ‘must show a series of coordinated acts directed at him or her which can be said to be not isolated by systematic’. The fear of a single act of harm done for a Convention reason will satisfy the Convention definition of persecution if it is so oppressive that the individual cannot be expected to tolerate it so that refusal to return to the country of the applicant’s nationality is the understandable choice of that person.”

19. It should be noted that that case was decided prior to the introduction of s.91R to the Act, which became operational on 1 October 2001 (Migration Legislation Amendment Act (No 6) 2001 (Cth)). Section 91R(1)(b) and (c) and s.91R(2) is concerned with “serious harm” and “systematic and discriminatory conduct”.

20. However there is authority of this Court that Haji Ibrahim remains law even though it predates the introduction of s.91R. (See VQAD v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 481 per Scarlett FM. See also NBFP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 95 at [57]).

21. What I understand the applicant’s submissions to be, therefore, is that the incident in 2007 was a part of the “systematic conduct” directed towards the applicant and a part of the “conduct” he feared from the young Hindu woman’s family if he were to return to India.

22. I also note what was said by McHugh J in Haji Ibrahim at [101] when applying the principle above to the facts presented in the case before the Court:

    “The Tribunal did not use the term ‘systematic conduct’ to refer to a number of acts. Nor did it use the term to mean a series of coordinated acts directed at the applicant or his clan or sub-clan. As I have said, the Tribunal stated that, in an appropriate case, persecution may ‘include single acts of oppression’. The Tribunal appears to have been of the view that the ‘instability, anarchy and murderous shiftings’ mean that the harm that the applicant feared was random, and so ‘unsystematic’ in the sense of not being selective. There was no error of law in this approach. Accordingly, the Full Court erred when it held otherwise.”

23. The applicant’s submission does not in my view disclose error on the part of the Tribunal.

24. First, the Tribunal’s finding that there was nothing beyond his own “speculation” that the Hindu woman’s family might wish to harm him, or even that they were associated with the RSS, stands on its own as a rejection of the applicant’s claim to fear persecutory harm on return to India. There was nothing to show that he had been harmed by her family in the past, and in the Tribunal’s analysis there was nothing beyond  his own speculation that they would seek to harm him in the future.

25. This finding means that the issue of systematic conduct does not arise. There is simply no conduct, systematic or otherwise, or selective or discriminatory, such that the Tribunal can then be said to have misapplied the term “systematic conduct” in this context.

26. Second, in relation to the incident in 2007, the Tribunal found this was “minor” in nature. There is nothing in this finding to suggest that the Tribunal rejected the notion that this incident could not lead to a finding of persecutory harm because it was only one incident and did not involve, or was not part of, a series of coordinated incidents against the applicant.

27. I do not see that the Tribunal had an expectation that the applicant: “must show a series of coordinated acts directed at him… which can be said to be not isolated but systematic”. There was no expectation that the applicant had to show a number of occasions from which the fear would then be said to be well founded.

28. Rather, on at least a fair reading, the Tribunal found that this incident, although it had occurred (as opposed to the fear of harm from the family where nothing had occurred in the past and there was only speculation as to the future), was “minor”. That is, that it was not such as to constitute harm of a “serious” nature such as to come within the definition of persecution.

29. As was also said by McHugh J in Haji Ibrahim at [55]:

    “… Similarly, while persecution always involves the notion of selective harassment or pursuit, selective harassment or pursuit may not be so intensive, repetitive or prolonged that it can be described as persecution.”

30. In other words, in the current case, the incident in 2007 was “minor”.

31. Third, the reference as to how the applicant regarded this incident (not constituting either “serious harm” or systematic or discriminatory conduct) must be seen in light of also applicant’s own evidence that the assailants apologised to him, and he then continued to lead an “otherwise peaceful life”.

32. The Tribunal did not say that this was a random act. It is at least implicit that it found the act to have been targeted to the applicant, but did not amount to “serious harm” because it was “minor”, with no evident ongoing consequences.

33. Fourth, in its decision record the Tribunal set out its understanding of the relevant test to be applied. This is in the usual unexceptional terms (see [9] at CB 146 to [18] at CB 148). In particular, at [11] the Tribunal makes reference to s.91R and that it qualifies: “some aspects of Article 1A(2) for the purposes of the application of the Act and the regulations to a particular person”.

34. At [13] the Tribunal specifically notes that the Convention definition of “persecution” is qualified by s.91R(1)(b), in that it must involve “serious harm” to the person. Further, that s.91R(1)(c) requires the involvement of “systematic and discriminatory conduct”.

35. It is the case that the High Court has said that Tribunal decisions should not be: “construed minutely and finely with an eye keenly attuned to the perception of error” (at [30]). I also note what was said by Stone J in SZCBT v Minister for Immigration & Multicultural Affairs [2007] FCA 9 at [26]:

    “The Minister urged a ‘beneficial’ construction of the Tribunal’s reasons and referred to comments made in Minister for Immigration & Ethnic Affairs v Wu Shan Liang in particular at 271 – 272. The phrase ‘beneficial construction’, as used in Wu Shan Liang has a specific meaning, and was certainly not intended to mean that any ambiguity in the Tribunal’s reasons be resolved in the Tribunal’s favour. Rather, the construction of the Tribunal’s reasons should be beneficial in the sense that the Tribunal’s reasons would not be over-zealously scrutinised, with an eye attuned to error. In this sense a ‘beneficial’ approach to the Tribunal’s reasons does not require this Court to assume that a vital issue was addressed when there is no evidence of this and, indeed, the general thrust of the Tribunal’s comments suggest that the issue was overlooked.” [Citation omitted].

36. But it does not take a beneficial reading to see that what the Tribunal was doing at [81] of its decision record was merely reflecting the relevant language of the legislation itself.

37. A plain reading of [81] reveals that the Tribunal found the incident in 2007 to be “minor”. It gave reasons for this. It noted that, in context, and plainly for the purposes of the definition of “persecution” as qualified by s.91R, that the applicant himself did not regard this incident as amounting to Convention related persecution.

38. Whether it can be said that the Tribunal “seemingly” also was of this view (see [14] of the applicant’s submissions) does not assist the applicant. Even if the Tribunal was of this view, it was merely saying that the incident in 2007 did not fall within the definition of “persecution”.

39. It is the case that in Haji Ibrahim, McHugh J said (at [100]):

    “Given the misunderstanding that has arisen from using the term ‘systematic conduct’, it is probably better to refrain from using it in a Convention context. But if it is to be used, those who use it should make it clear that they are referring to ‘non-random’ acts, otherwise, they run the risk of making a legal error.”

40. Given the plain terms of s.91R(1)(c), it may be that the Tribunal now should regard this caution as having to be seen in light of the direction given by the courts that decision makers should apply the language of the Convention. (See Guo, at 572 – 573. See also NACB of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 140, particularly at [58] per Sackville J.)

41. Section 91R was not intended to replace the Convention concept of “persecution”. The Explanatory Memorandum (as revised) to the Migration Legislation Amendment Bill (No 6) 2001, which introduced subdivision AL of Division 3 of Part 2 of the Act, of which s.91R is a part, states, relevantly, that the purpose of the section was to: “… restore the application of the Convention… to its proper interpretation”. (See in particular paragraphs [1] to [3]).

42. In the current case, therefore, the Tribunal was applying the language of the Act to the Convention. I cannot see error in the Tribunal’s approach in this regard.

43. To return to these grounds as pleaded, nor do I agree with the submission that a finding that an incident said to be “minor”, albeit involving RSS activists, should rationally or reasonably lead to a finding that the applicant feared harm from the young Hindu woman’s family if he were to return, when the evidence before the Tribunal was such as to enable it to find that there was nothing beyond his own speculation that they would seek to harm him.

44. That there was “systematic conduct” directed towards the applicant because all of his claims showed that RSS activists were interested in him does ignore the real nature of the clear findings made by the Tribunal in relation to each of the instances of past harm, and in relation to the fear of future harm.

45. In all, as the Minister submits, the applicant asks this Court to substitute its own findings, or to reach a different conclusion as to the aggregation of the “facts” claimed, as distinct from the facts found by the Tribunal, and as to whether they amount to a well founded fear of persecutory harm. This the Court cannot do.

46. In all, I cannot see that the Tribunal’s reasoning was irrational or illogical. Its findings, based on the applicant’s own evidence, were open to it, and while the applicant may have wished for a different conclusion, the conclusion reached by the Tribunal was probative of the material before it. Grounds Two and Four are not made out.

Conclusion

1. For the applicant to succeed before the Court, jurisdictional error (at least) would need to be discerned in the Tribunal’s decision. With the benefit of legal assistance, the applicant has put a number of grounds before the Court asserting jurisdictional error. None of those grounds are made out. The application is therefore dismissed.

I certify that the preceding one hundred and seventy-nine (179) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  D Nestor

Date: