SZNZD v Minister for Immigration

[2009] FMCA 1300

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNZD & ORS v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1300

MIGRATION – Review of decision of Refugee Review Tribunal decision – applicant seeking impermissible merits review – Tribunal properly assessed applicant’s claims – Tribunal not required to make inquiries in the circumstances – Tribunal considered corroborative evidence – findings open to Tribunal on what was before it – Tribunal understood test to be applied under s.91R – choice and weight of country information for the Tribunal – two independent bases of Tribunal’s reasoning – Tribunal specifically dealt with applicant’s concerns regarding relocation – no bias – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36, 65, 91R, 424A, 425

Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; 90 FCR 287
Applicant  WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
SZBEL v Minister for Immigration & Multicultural & IndigenousAffairs [2006] HCA 63; (2006) 228 CLR 152
Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510
Re Ruddock & Anor; Ex parte Applicant  154 /2002 (2003) 201 ALR 437; [2003] HCA 60
Minister for Immigration & Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; 222 CLR 1
Randhawa v the Minister of Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 121
SZJBA v Minister for Immigration & Citizenship [2007] FCA 1592
WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277
Minister for Immigration & Citizenship v SZIAI [2009] HCA 39
Prasad v Minister for Immigration & Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
Iyer v Minister for Immigration & Multicultural Affairs [2001] FCA 929; (2001) 192 ALR 71
NAHI v Minister for Immigration & Multicultural Affairs [2004] FCAFC 10
Applicant NABD of 2002 v Minister for Immigration & Multicultural Affairs [2005] HCA 29; (2005) 216 ALR 1
NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195; (2006) 156 FCR 419
VQAB v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCAFC 104
SZATV v Minister for Immigration & Citizenship [2007] HCA 40
Sabaratnasingam v Minister for Immigration & Multicultural Affairs [2000] FCA 261
NAUW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1086
VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965
SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306
MZWPK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1256
VCAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 1
MZXGR v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1167
SZEVE v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 390
SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46
Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 157
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361
Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872
Re Refugee Review Tribunal; Ex parteH [2001] HCA 28; (2001) 179 ALR 425
VFAB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; [2003] 131 FCR 102

First Applicant: SZNZD

Second Applicant: SZNZE

Third Applicant: SZNZF

Fourth Applicant: SZNZG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2527 of 2009

Judgment of: Nicholls FM

Hearing date: 17 December 2009

Date of Last Submission: 17 December 2009

Delivered at: Sydney

Delivered on: 17 December 2009

REPRESENTATION

Appearing for the Applicant: In person

Solicitors for the Applicant: -

Appearing for the Respondents: Mr J Pinder

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application made on 20 October 2009, and amended on 3 December 2009, is dismissed.

2. The first and second named applicants pay the first respondent’s costs set in the amount of $4,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2527 of 2009

SZNZD

First Applicant

SZNZE

Second Applicant

SZNZF

Third Applicant

SZNZG

Fourth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me an application made on 20 October 2009, and amended on 3 December 2009, made under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal), a decision made on 24 September 2009, which affirmed the decision of a delegate of the first respondent, the Minister, to refuse protection visas to the applicants.

Background

1. The applicants before the Court are all citizens of India.  They are husband, wife, and their two children. They arrived in Australia on 18 March 2009 and applied for protection visas in April 2009.

2. The Minister has put a bundle of relevant documents as evidence before the Court, to which I will refer as the Court Book (“CB”). The application for the visas is reproduced at CB 1 to CB 113, with a number of annexures. What the application reveals is that only the applicant husband (to whom I will refer as “the applicant”) made refugee claims. The applicant’s wife and two children applied as members of his family. (See CB 27, CB 33 and CB 39.)

Claims to Protection

1. The applicant claimed to fear harm, if he were to return to India, because of harassment by political parties, and leaders, who were pressing him, and vying for him, to give them opportunities for media and other public exposure in association with the applicant’s work. This can be described broadly as the marketing of pharmaceuticals and related products. 

2. The two main parties involved were said to be the Bharatiya Janata Party (“the BNP”), which was described as “strong” in Gujarat, and the Indian National Congress (“the Congress Party”).

3. The applicant claimed that as the harassment increased he stopped the “marketing programs”. However, the harassment continued, and he was beaten by persons that he initially described as “muscle men”, who were encouraged by relevant local political leaders. As a result, he feared for his own safety and, importantly, for the safety of his family.  He also claimed that he was unable to move to another part of India because the political parties had connections to the whole of India. Further, attempts to complain to the police were unsuccessful.

4. He ultimately left India with his family and came to Australia for their safety. 

The Delegate

1. The Minister’s delegate was not satisfied that the applicant’s claims revealed any Refugees Convention connection, or nexus. The actions claimed to have been taken against the applicant were seen by the delegate as criminal in nature. 

2. In the alternative, the delegate found that there was adequate state protection available to the applicant and his family.

3. Further, the delegate found that the applicant could safely and reasonably relocate to another part of India, a country in which there was a vast population.

The Tribunal

1. As a result of the delegate’s decision the applicants applied for review by the Tribunal. (The application is reproduced at CB 130 to CB 133.) By letter dated 4 August 2009 the applicants were invited to a hearing before the Tribunal scheduled for 2 September 2009, and by letter of the same date, the Tribunal invited comment on certain information which it said would be the reason, or a part of the reason, for affirming the decision under review (CB 149 to CB 152).

2. This information was personal information supplied by the applicant to the delegate, including information given at an interview, and country information available to the Tribunal. While the Tribunal may not have been under an obligation, pursuant to s.424A(1), in relation to country information, because it appears that it was not relevant to the applicant as an individual, and therefore fell within the exception contained in s.424A(3)(a) from the obligation that is set out in s.424A(1), it nonetheless put it to the applicants for comment.

3. Certainly, what the applicant orally told the delegate did not fall within any of the exceptions in that part of the Act. The Tribunal therefore quite properly wrote to the applicant seeking comments on this information as it was required to do.

4. The letter advised that this information was relevant because it may cause the Tribunal to question whether the fear was well founded, and further, that it could be said that the applicants could reasonably relocate to another part of India.

5. The applicant responded by letter dated 19 August 2009 (CB 155 to CB 156).

6. The applicant and his wife attended the hearing on 2 September 2009. The Tribunal’s account of what occurred is set out in its decision record. I note, in particular, paragraphs 24 to paragraphs 56 of its decision record in this regard.

7. Both the first applicant and his wife gave evidence. I note that although they both spoke English, the hearing was conducted with the assistance of an interpreter in the Hindi language (CB 157).

The Tribunal’s Findings and Reasons

1. While the Tribunal’s key findings are contained in its decision record under the heading: “Findings and Reasons”, it must be said, with respect to the Tribunal, that the findings and reasons are buried in what I can only describe as large slabs of repetition of what is already set out as having occurred at the hearing.

2. However, the following is, in my view at least, clear as to the Tribunal’s relevant findings.

3. The Tribunal accepted the applicant’s personal factual background as provided by him. That is, it accepted as true the details about his education, his employment with a particular non-government organisation in India, and his having obtained a promotion in his employment.

4. However, having regard to inconsistencies in the applicant’s evidence, and what the Tribunal clearly saw as other inadequacies in the evidence, and the applicant’s inability to provide details about certain matters in circumstances where the applicant would have been otherwise expected to have been able to provide such details (that is, his inability to identify, or to assist in the identification of, his claimed assailants), the Tribunal found that he had not been harassed, threatened, or beaten by members of political parties. It further found that the pressure that may have come from those who funded the applicant’s activities was not severe enough to constitute “serious harm”.

5. Further, the Tribunal found that while the applicant may have been under pressure from those who provided funding for his activities to present his work in certain ways, this pressure was not such as to constitute “serious harm” for the purposes of s.91R(2) of the Act.

6. In the alternative the Tribunal found that the applicant and his family could reasonably and safely relocate to another part of India.

7. The Tribunal therefore found that the applicant did not satisfy the relevant criterion set out in s.36(2)(a) of the Act and, therefore, that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention.

8. As the three remaining applicants made no refugee claims in their own right, and applied as members of the applicant’s family (the remaining three applicants all filled out what is described as “Part D” of the application form – CB 27, CB 33, and CB 39), given the Tribunal’s finding in relation to the applicant, they did not satisfy the criterion set out in s.36(2)(b) of the Act. In all, therefore, the Tribunal affirmed the delegate’s decision.

Application to the Court

1. By way of amended application put before the Court, the applicants have put four grounds of review for the Court’s consideration:

   “1. The applicant claims that the Tribunal made a jurisdictional error that the Tribunal did not assess the applicant’s claims properly. The Tribunal was plying [sic – playing] the role of police to find out who are the assailants instead to assess the applicant’s claim.

   [Particulars follow]

   2. The applicant claims that the Tribunal made a jurisdictional error that the Tribunal did not understand s91R of the Migration Act 1958 (the Act). Serious injury is not required under this section of the Act. There was threat for applicant’s life, liberty and income. The Tribunal altered the applicant’s threat into some pressure from funding authority.

   3. The applicant claims that the Tribunal made a jurisdictional error that the Tribunal relied on the very old Report to reject the applicant’s review application. The Tribunal mentioned at paragraph 70 that the Tribunal prefers the Country Information US Department of State Report for 2004 – India but the Tribunal did not check the update report willingly and the Department prefers very old report to reject his claim which is also an unfair procedure (paragraph-70).

   4. The applicant claims that the Tribunal made a jurisdictional error that the Tribunal willingly made a very wrong observation that the applicant has relocated his family to Australia and on the basis of this wrong observation the Tribunal again made another wrong observation that the applicant could relocate in India. The applicant and his family has not relocated to Australia they came to Australia for protection and to save their lives from the threat and harassment.”

Hearing Before the Court

1. At the hearing before the Court the applicant appeared in person. An interpreter in the Hindi language was made available to him. However, the applicant’s command, grasp, and expression of the English language was of a very high order, and he was able to conduct his part in the hearing without the assistance of the interpreter.

2. The applicant wife and applicant children did not appear. On a previous occasion, I appointed the applicant, the applicant children’s father, as their litigation guardian. As to the applicant wife, the applicant confirmed to the Court that she knew when the hearing was scheduled, but that he had come to speak on her behalf, as well as on behalf of the children, and indeed on his own behalf.

3. Mr J Pinder appeared for the first respondent. It appears that the Minister was not served with the amended application, nor with written submissions filed by the applicants in support. The Minister’s written submissions were therefore prepared without having regard to the amended application, nor to those submissions.

4. Mr Pinder, however, submitted that no objection was taken by the Minister.  He was content to proceed with the hearing and to make oral submissions in response to the grounds in the amended application and the written submissions in support.   

5. The applicant confirmed that he pressed the grounds in the amended application and relied on his written submissions. I note that in oral submissions before the Court he referred variously to paragraph 8 of the Minister’s written submissions, and challenged what was expressed at that part of the Minister’s submissions as being findings made by the Tribunal. The challenge was on the basis that if the Tribunal had made findings that the applicant had been educated, and had had certain employment, why then did it find that the applicant could have stayed in India, and was not in danger of serious harm if he were to do so.

6. The applicant also referred to various paragraphs of the Tribunal’s decision record ([32], [34], [38] and [40]), again challenging what could be said to be the matters that ultimately led to factual findings by the Tribunal, which were generally adverse to the applicant.

7. As I explained to the applicant during the course of the hearing, the system that operates in Australia relevantly distinguishes between the role and powers of the Tribunal, and the role and powers of the Court. I explained that, ultimately, it is for the Tribunal to determine whether applicants, such as the applicants before the Court, in effect meet the definition of “refugee” as it is set out in the Article 1A(2) of the Refugees Convention.

8. The role of the Court is not to revisit that question, but to ensure that what the Tribunal has done has been done in accordance with the law. I explained that, in effect, the Court is concerned with whether the Tribunal has made a “legal mistake”, that is, jurisdictional error. 

9. As I also explained to the applicant, that distinction means that the Tribunal is required, in the proper exercise of the jurisdiction conferred upon it by the Act, to make relevant findings of fact, after having looked at all the circumstances, and all the claims, and aspects of claims, presented by an applicant, and having looked at claims that may be said to clearly arise from what has been said by an applicant.

10. These findings of fact include findings as to credibility. Then, based upon those findings, it is required to arrive at a conclusion as to whether the applicant has a well founded fear of persecution for a Convention reason in his or her home country, and ultimately to come to a conclusion as to whether Australia owes protection obligations to that applicant. 

11. As I explained to the applicant, in making those findings of fact, provided that those findings are open to the Tribunal to make on what is before it, and so long as the Tribunal can be seen to have relied on probative material and evidence, and so long as the Tribunal gives reasons for its findings, and reasons as to how those findings lead to the ultimate conclusion, this Court has no power to intervene to substitute its own findings.

12. Unfortunately for the applicant, and with great respect to him, his reference to the Minister’s submissions, and in turn, to various parts of the Tribunal’s decision record, did not rise above a challenge to the Tribunal’s factual findings. Factual findings that were clearly open to it to make on what was before it. Factual findings which were then the basis upon which the Tribunal came to its ultimate conclusions. 

13. In short, what the applicant has submitted to the Court, as Mr Pinder, in my view, correctly submitted, does not rise above a request for impermissible merits review. In these circumstances, the Court cannot assist the applicant in relation to those submissions (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

Consideration

Ground One

1. In ground one the applicants assert generally that the Tribunal did not assess the applicant’s claims properly. I understood that to mean that the Tribunal sought to investigate, or was, as described, “pl[a]ying the role of police” in investigating, the circumstances of who assaulted the applicant, rather than assessing the applicant’s claim.

2. This is particularised in four ways. First, with reference to paragraphs 64 to 66 of the Tribunal’s decision record, the applicant asserts that the Tribunal questioned him on the identity of his assailants, and why he did not subsequently go to the police.

3. Second, I understood the second particular to assert that the Tribunal should have made inquiries of the applicant’s employer as to the reason that the employer did not offer assistance to him.

4. Third, that the Tribunal failed to consider the corroborative evidence of the applicant’s wife given at the hearing.

5. Fourth, that the Tribunal made a finding that the applicant’s, and his wife’s, evidence was not adequate. He challenges this finding. The written, and indeed, the oral submissions also press this general complaint. The written submissions add that the Tribunal did not investigate the applicant’s claims for protection.

1. Even with reference to the particulars, this general complaint is not made out. Ultimately, this again challenges the Tribunal’s approach to, and its evaluation of, the claims put by the applicants, and the Tribunal’s subsequent findings based on that evaluation. In any events, turning now to each of the particulars.

Particular One

1. The applicant refers to paragraphs 64 to 66 of the Tribunal’s decision record. These paragraphs appear under the heading: “Findings and Reasons”, and support the view that the applicants, in fact, seek to challenge the Tribunal’s factual findings. To this extent, again, this is a request for impermissible merits review.

2. In any event, even taken at face value, and with respect to the applicant, this particular complaint misconceives the nature of the proceedings before the Tribunal. The Tribunal’s function is to critically assess the evidence before it. The role of the Tribunal is to properly consider each claim, and each aspect of a claim put forward by an applicant, or claims that can be said to clearly arise from the circumstances before it (Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; 90 FCR 287, Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184).

3. The role of the Tribunal is generally inquisitorial and is not, in the strict sense, adversarial, as is used to describe proceedings in a Court (SZBEL v Minister for Immigration & Multicultural & IndigenousAffairs [2006] HCA 63; (2006) 228 CLR 152 at [47], Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 578 ([187]) per Gummow and Hayne JJ and Re Ruddock & Anor; Ex parte Applicant  154 /2002 (2003) 201 ALR 437; [2003] HCA 60 at [57] and [81] per Gummow and Heydon JJ, Minister for Immigration & Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; 222 CLR 1 at [97]).

4. To the extent, therefore, that the applicant’s complaint may be said to be about the style, the type, or the range of the questioning by the Tribunal, it is, in fact, within the proper role of the Tribunal to be inquisitorial, and to seek, or attempt to seek, answers or explanations from an applicant on matters that are relevant to the issues before it.

5. In assessing an applicant’s claims, and the evidence in support of those claims, it is for the Tribunal to determine generally what questions are relevant to enable it to make findings of fact that will inform its ultimate task as to whether it is satisfied that the applicants (or in this case, the applicant), in effect meet the UN Convention definition of “refugee”. 

6. In the current case the applicant claimed to fear persecutory harm if he were to return to India, in large part, based upon his past experiences, or his claimed past experiences. He claimed to fear harm from local political forces and leaders who were aggrieved, predominantly, and ultimately, because he ceased to provide them with the opportunity to promote themselves in conjunction with his marketing campaigns, his programs, and his activities.

7. He claimed that the harassment from these political forces increased, and that he was beaten by “muscle men”, who were encouraged by the political leaders (CB 47.7). These were matters raised in the applicant’s own statement in support of his application for a protection visa. In these circumstances, it was quite appropriate for the Tribunal at the hearing to seek details and to ask questions of the applicant as to the identity of his assailants. This incident was a central example that was given by the applicant himself as to the past harm that he said he had suffered in India, which was said to emanate from political forces. The identity of his assailants was particularly relevant, given what the applicant claimed in his initial statement. 

8. I note that in being questioned by the Tribunal he was not able to provide even that level of detail, as set out in his statement, being reported as having been able only to describe those who assaulted him as: “being persons unknown to him”. I refer here to what is set out in paragraphs 33 and 34.

9. With respect, the applicant appears to labour under the misapprehension that the Tribunal is obliged to uncritically accept everything that he and his wife said. That certainly is the implication arising from the way that the grounds have been pleaded, and the way that the submissions have been drafted. As is well known, that is not the case (Randhawa v the Minister of Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265).

10. I can only agree with Mr Pinder’s submissions that the Tribunal, in the circumstances, was perfectly entitled to test these claims. Claims, it must be remembered, which were made by the applicant initially in his application for a protection visa.

11. These claims were assessed by the delegate, as expressed in the delegate’s decision record. It is that decision which was the subject of the review before the Tribunal. The connection, therefore, is quite clear. It was highly relevant to the task facing the Tribunal to press the applicant for details as to his assailants, and whether any report had been made to the police. After all, this was at the heart of the applicant’s complaints that he feared harm from local politicians who had inflicted harm on him in the past through their use of these assailants. 

Particular Two

1. The second particular complains that the Tribunal did not verify with his employer as to why they did not offer assistance to him. 

2. This appears to refer to, and derive from, the Tribunal’s relevant questioning at the hearing (reported at [34] of the decision record) as to whether his employer would offer assistance in his dealing with these claimed unknown assailants who disrupted the delivery of his work. That is, the “marketing” programs. 

3. The Tribunal found that it expected that his employer would have tried to ensure that his programs were delivered, given that they were receiving large amounts of money from the Indian authorities for this purpose. (This is set out in its findings at [66].)

4. It is the case, as Mr Pinder, in my view, again correctly submitted, that there is no general duty on the Tribunal to have made inquiries or to have investigated, nor to have made inquiries of his employer in the circumstances of this case (Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 121 at [21] to [22] per Gummow and Hayne JJ. See also SZJBA v Minister for Immigration & Citizenship [2007] FCA 1592 at [46] per Allsop J, WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 at [24]).

5. In some circumstances the Tribunal may be required to make inquiries. For example, see Minister for Immigration & Citizenship v SZIAI [2009] HCA 39 where the High Court recently indicated that there may be some circumstances where that may be the case. Another example could be found in Prasad v Minister for Immigration & Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155. In that case it was said that an inquiry which was obvious, and could be readily conducted, should have been conducted. Failure to do so would not be reasonable in the circumstances, and would amount to a breach of procedural fairness.

6. But what must be understood by the applicant is that these circumstances are limited, and do not appear in the circumstances of this case. Again, as Mr Pinder correctly submitted, any such inquiry would not have been readily available for the Tribunal to conduct.  The substance of the Tribunal’s finding was that it did not accept the applicant’s explanation as to his employer’s failure to assist. The Tribunal’s finding was based on what it perceived to be the inadequacy of the applicant’s own evidence. It is difficult, therefore, to see why his employer could have given evidence relevant to a matter that arose from the applicant’s inability to provide an adequate answer to the Tribunal’s relevant questioning. 

7. What the applicant clearly (again, with respect) fails to understand, and what is clear in the Tribunal’s reasoning, is that the actual reasons as to why the employer did not provide assistance are irrelevant. The Tribunal’s concerns were clearly the applicant’s own inappropriate, and inadequate, responses to its questions.

8. It is difficult to see how the employer could have assisted to alleviate the Tribunal’s concerns about the applicant having given answers that the Tribunal considered to be inappropriate, or inadequate.

9. In my view, the Tribunal’s reasoning is sound and, in part, provides a probative basis for rejection of the credibility of the applicant’s factual account of what he said had occurred to him in India. 

Particular Three

1. The third particular asserts that the Tribunal did not consider the applicant wife’s corroborative evidence. 

2. Even on its face, this must be rejected as a basis for showing jurisdictional error on the part of the Tribunal. The applicant wife’s evidence to the Tribunal is set out in the decision record at paragraphs 46 to 56. The applicants have put no evidence before the Court to contradict the Tribunal’s account.

3. It is important to note that at the first court date in this matter the applicants were provided with orders that created the opportunity to put evidence before the Court. Relevantly, they had the opportunity to provide a transcript of the Tribunal hearing. No such evidence has been put before the Court. What the Court is left with is the Tribunal’s own account of what was said to have occurred. In these circumstances, it is not open to the Court to draw inferences, or to make assumptions about what may otherwise be said to have happened at the hearing, given that lack of evidence (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241).

4. The applicant wife’s evidence, as reported, reveals that she did not add anything of substance to the claims nor, it must be said, anything of even a minor nature to the evidence provided by the applicant himself. It is noteworthy that at one point (at [51]) the applicant himself was required to answer a question posed to his wife.

5. But, in any event, on any plain reading of the Tribunal’s analysis what is revealed is that the Tribunal did consider her evidence. The Tribunal found that her evidence appeared to corroborate that of her husband’s, in that his employers did not know how to help him (at [66]).

6. Further, the Tribunal specifically considered the applicant wife’s evidence in relation to the factual claims that the applicant was harassed, and that the local police would not assist him ([68]). Even further, the Tribunal considered her evidence in relation to the issue of relocation ([70]).

7. In the circumstances the applicant’s real complaint appears to be that, given that the applicant wife generally corroborated the applicant’s evidence, the Tribunal should have made a decision favourable to them. The evaluation of evidence before it, and the use and the weight to be accorded to evidence is, of course, a matter for the Tribunal. There is no compulsion on the Tribunal to accept the applicant’s evidence uncritically, and there is no compulsion on the Tribunal to accept his evidence simply because his wife’s evidence can be said not to have contradicted what he said, nor is it required to accept such evidence even if it, at best, it did corroborate what he said. This complaint, therefore, does not assist in showing jurisdictional error on the part of the Tribunal. 

Particular Four

1. The fourth particular appears to assert that the Tribunal did not provide reasons as to why it found their evidence to be inadequate. 

2. The applicants, both husband and wife, both claim to be able to speak, read, and write English, and I note what is set out in their own application at CB 12 and CB 27.

3. In his written submissions the applicant asserts that he is “very educated” and “highly skilled”, and before the Court he appeared as highly proficient in English, and spoke with intelligence. But this complaint, however, reveals, with respect, that the applicants either have not read, or have not understood, the reasons that the Tribunal gave that led to its ultimate conclusion.  That is, that the Tribunal was not persuaded by their evidence that they met the definition of “refugee”. In that sense, their evidence can be said to be inadequate. 

4. As I have already said, even on the plainest of readings of the Tribunal’s decision record, what is revealed is that the Tribunal found the applicant’s, and his wife’s, evidence to be lacking in detail, vague, confused, and inappropriate. The Tribunal found that some of the evidence was inadequate. What it clearly meant was that their particular responses to its concerns about their evidence were unsatisfactory, or inadequate, to overcome the concerns that had been raised in its own mind. The Tribunal’s findings in this regard were clearly within the exercise of its jurisdiction.  The Tribunal explained and gave cogent reasons as to why the responses were inadequate.  This complaint, therefore, does not succeed. 

5. I should just note that on the issue of “satisfaction”, the relevant statutory scheme (ss.65 and 36(2) of the Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out, relevantly, in s.36(2). That is, effectively, 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 VSAF of 2003 [2005] FCAFC 73).

6. If the Tribunal is unable to reach that requisite level of satisfaction then the visa must not be granted. Therefore, to the extent that the applicants complain that the Tribunal found that their response was not “adequate” (and the Tribunal, in part, used that word in its analysis), what the Tribunal clearly meant was that it was not such as to satisfy it that the applicants meet the definition of “refugee”. The Tribunal explained that it could not reach that level of satisfaction because of the vague, confused, and similar observations and findings that it made in relation to their evidence.

7. In all, ground one, therefore, does not succeed. 

Ground Two

1. Ground two appears to take issue with the Tribunal’s finding that the harm feared did not amount to “serious harm” for the purposes of s.91R of the Act.

2. The submissions assert that the Tribunal did not understand that s.91R(2) does not require serious injury, but that the threat to the applicants’ life, liberty, and income should have been sufficient to bring their claims within the meaning of “serious harm”. The ground as pleaded appears to also assert that the Tribunal “altered” the applicant’s claims to be simply facing some pressure from the authorities who funded his programs.

3. In regard to this latter point, it is not exactly clear what the applicant is seeking to establish.  It may be that this is a complaint that the Tribunal found that it would have expected his employer to have assisted him, given that it was receiving large amounts of money from the Indian authorities for the delivery of programs in which the applicant was involved. Given what the applicant said to the Court today, this appears to be what sits within this complaint. If that is the case, then this complaint does not succeed because of the reasons that I have already given. In essence, because it seeks to challenge that particular finding made by the Tribunal, which was a finding that was clearly open to it to make on what was before it.

4. Section 91R, of course, qualifies the meaning of “persecution” as derived from Article 1A(2) of the Refugees Convention. Section 91R(1) provides, amongst other things, that for the purposes of the Act the term, “persecution” involves “serious harm” to the person. Section 91R(2) sets out a non-exhaustive list of examples that will meet that relevant test. This includes “life” and “liberty”, as asserted by the applicants in their submissions, and in ground two. It also includes significant economic hardship that threatens the capacity of a person to subsist, and it may be said that “income” is a part of that concept.

5. To that extent, the implication in the applicants’ application and submissions as to what is set out in the Act is correct. However, the applicants again have either misunderstood or, with respect, chosen to overlook what the Tribunal has plainly reasoned, and found.

6. The Tribunal set out its relevant understanding of s.91R in the usual unexceptional terms. Mr Pinder referred the Court to paragraph 14 of the Tribunal’s decision record. The Tribunal, upon the best evidence available to the Court, understood the relevant test to be applied. But in this case the Tribunal found that the applicants’ evidence was such that the central and critical part of their claim to have suffered persecutory harm in the past was not made out.

7. The very clear reasoning of the Tribunal, in this regard, was that once the central part of the applicants’ factual claim was rejected, what was left, in the absence of any serious injury, did not amount to “serious harm”. This must be seen as being relevant in the sense that the Tribunal rejected the factual claims put forward by the applicant, including the threat to his subsistence.

8. It is not, as the applicants suggest, that the Tribunal sought to limit the relevant scope of s.91R(1) and (2), but the fact that the applicants continue to assert a threat to life, liberty and income, it must be said, ignores that the Tribunal, for the reasons that it gave (reasons, which were again reasonable in the circumstances), did not accept that such harm existed.

9. In submissions before the Court, Mr Pinder submitted that what the Tribunal set out relevantly at paragraph 68 is reflective of the wording of the requirements of the relevant test, and that this wording reveals that the Tribunal did not confine its thinking and its reasoning only to serious injury. He submitted that having regard to the applicant’s evidence, there was nothing to suggest that only serious injury, as opposed to serious harm, generally was the limiting factor relied on by the Tribunal. In essence, and for the reasons that I have advanced, I can only agree with Mr Pinder’s submission in that regard. 

10. Ground two, therefore, is not made out. 

Ground Three

1. In ground three, the applicants complain that the Tribunal relied on a very old report to reject their application. This, it is said, reveals that the Tribunal did not give proper attention to their claims. This is particularised with reference to paragraph 70 of the Tribunal’s decision record. At that part of its analysis the Tribunal was setting out its consideration as to the reasonableness of relocation of the applicants to another part of India.

2. In that analysis, the Tribunal referred to: “US Department of State Report for 2004 – India”, and in particular, that part concerning parliamentary democracy and the role of law in India.

3. First, it is the case that the Tribunal’s choice and assessment of country information is a factual matter for the Tribunal (Iyer v Minister for Immigration & Multicultural Affairs [2001] FCA 929; (2001) 192 ALR 71, NAHI v Minister for Immigration & Multicultural Affairs [2004] FCAFC 10 at [11] to [13], Applicant NABD of 2002 v Minister for Immigration & Multicultural Affairs [2005] HCA 29; (2005) 216 ALR 1 at [8] per Gleeson CJ, NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195; (2006) 156 FCR 419 at [81] to [84]).

4. Second, as the Minister submits in written submissions, the use of older country information is not, of itself, a matter which constitutes jurisdictional error. I agree with the Minister’s reliance on VQAB v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCAFC 104.

1. The applicants did not take issue with the use of the substance of the report, merely that it was “old”.

2. The applicants’ complaint in this regard, therefore, is not made out.

Ground Four

1. The applicants’ fourth ground (and drawing also on the third ground, and the written submissions) takes issue with the Tribunal’s finding that it was reasonable for the applicants to relocate to another part of India. There are a number of elements, or iterations, to this complaint. 

2. First, the applicants’ fourth ground pleads that the Tribunal made a “wrong observation” that the applicant relocated his family to Australia and this observation, as it is described, appears at paragraph 72 of the Tribunal’s decision record. The Tribunal relevantly states (at CB 185):

   “The first named applicant has re-located his family to Australia.”

3. The application to the Court pleads that the applicant has never relocated his family to Australia, and that this led the Tribunal to make another wrong observation that he could relocate to another part of India. 

4. Dealing first with the former assertion, the applicants plainly, again with respect, misunderstand the way the Tribunal has used the term, “relocation,” at paragraph 72. In context, and at least on a fair reading, the Tribunal meant that the applicant had physically moved his family to Australia. The fact that he was able to still address his children’s needs, including their financial, educational, and social needs in an environment such as Australia, meant that this was an indicator that it was reasonable for the family to relocate in the more familiar environment of their home country.  Once the Tribunal’s meaning is properly understood, no error is revealed in this regard.

5. The applicant asserts in written submissions that he came to Australia to save his life, and those of his family. But even in that sense, the applicants have “relocated” to Australia. This is precisely the sense in which it has been used by the Tribunal.

6. It may be of benefit to the applicants’ understanding of what the Tribunal has done to note that, as I attempted to explain to the applicant at the hearing, under Australian law, a person is not in need of protection in Australia if the harm feared is confined to one locality only, and protection is available in another part of their country.  Under Australian law, if it is reasonable for an applicant to relocate in this way, then the applicant cannot be said to have a well founded fear of persecution in the country as a whole (SZATV v Minister for Immigration & Citizenship [2007] HCA 40).

7. The applicants also complain, in this regard, that “information” they obtained from the Minister’s Department, and from the Refugees Convention, does not say anything about “relocation”. I understood the compliant, therefore, to be that it was not open to the Tribunal in these circumstances to make any consideration, or finding, about their possible relocation within India.

8. It may well be the case that “information”, or research conducted by the applicants, found no mention of the concept of “relocation” in the context of refugee determination. But what the Tribunal is required to apply is Australian law and relevant authorities which provide the relevant direction for the Tribunal. The Tribunal is not limited to the research conducted by the applicants.

9. In one regard, it may have been of assistance to the applicants’ understanding that when setting out its reasoning, the Tribunal took greater care to explain why it felt the need to consider the issue of relocation in the circumstances of this case. During the course of the hearing I raised with Mr Pinder whether what the Tribunal had done at paragraphs 68 and 69 was consistent with the Minister’s submissions that the Tribunal’s decision was founded on two separate and independent bases.  The first is that the Tribunal did not accept that the applicant suffered serious harm in his home region in the past ([68]). The second is that the applicants could reasonably relocate within India ([71]).

10. It must be said that the Tribunal’s decision record does require at least a fair reading to derive a proper understanding of the approach taken by the Tribunal in this regard. But ultimately, I agree with submissions made by Mr Pinder that the Tribunal’s decision reveals two independent bases for affirming the delegate’s decision under review. 

11. The first is that the Tribunal did not accept that the applicant had suffered serious harm in the past in his home region. In particular, Mr Pinder referred the Court to that part of paragraph 68 where the Tribunal stated that it did not accept that the applicant was harassed, beaten, or threatened by political parties. 

12. The Tribunal accepted that he may have been under some pressure from his funding sources to present his work in certain ways.  However, the Tribunal did not accept that any pressure was severe enough to constitute “serious harm”. In my view, on a fair, and holistic, reading of the Tribunal’s decision record, when regard is had to what the Tribunal set out at paragraphs 75 to 79, this does support the proposition that the Tribunal made a finding that there was not a well founded fear of persecution in the local area for a Convention reason. 

13. The second basis, of course, is that the applicants could reasonably and safely relocate to another part of India.

14. If the Tribunal found that the applicant had not suffered serious harm in the past in his home area, and was not at risk of such harm in the future, amounting to persecution, then in essence, this is a finding that the applicants did not have a well founded fear of persecution for a Convention reason, if they were to return to India, including to their local area. I accept that on a fair reading this was what the Tribunal meant to convey.

15. But if that is the case, then it is unclear why the Tribunal then went on to consider the issue of relocation, given that it is only obliged to do so if it finds that a fear of localised persecution is well founded. It is not necessary for the Tribunal to consider relocation where it has found there is no well founded fear of persecution (Sabaratnasingam v Minister for Immigration & Multicultural Affairs [2000] FCA 261). In any event, it is also the case that it is not an error for the Tribunal to have nonetheless considered the issue of relocation when there was strictly no need to do so.

16. However, between paragraphs 68 and 69, my view, a few explanatory sentences may have been of benefit in assisting the applicants to understand the Tribunal’s reasoning. But on a fair reading, I am satisfied that the Tribunal’s reasoning reveals two independent bases for its ultimate conclusion. This is particularly so when the decision record is read holistically, and when paragraph 68 is read together with paragraphs 75 to 79.

17. In this regard, therefore, if some error is revealed in its consideration of the issue of relocation, it would not be jurisdictional error where the Tribunal’s decision is supported by another independent finding unaffected by jurisdictional error (NAUW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1086 at [23], VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965 per North J at [33], SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306, MZWPK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1256, VCAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 1, MZXGR v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1167, SZEVE v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 390).

18. But in any event, the Tribunal’s consideration of relocation, even on its own, does not reveal error and is consistent with relevant authorities (Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437, SZATV v Minister for Immigration & Citizenship [2007] HCA 40; (2007) 233 CLR 18, SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46). I note further, and importantly, that the Tribunal expressly dealt with the applicant’s objections to relocation. (See, in particular, [38], [39], [42] to [43], [55] and [70] to [72].) In all, therefore, ground four of the application is not made out.

Other Considerations

1. It may be that the Tribunal had initially decided that as the applicant and his family had relocated to Australia they could also reasonably relocate within India and that, in reality, the Tribunal did not consider their claim in this regard fairly.

2. To the extent that this could be said to be some implied assertion that the Tribunal acted in bad faith, or that there was bias, or an apprehension of bias, it is the case that such charges needed to be clearly made and supported by evidence, such that they can be distinctly proven (Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 157, SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [43] to [44], Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872, Re Refugee Review Tribunal; Ex parteH [2001] HCA 28; (2001) 179 ALR 425).

3. It is a rare circumstance that such matters can be made out with reference to the decision record alone (VFAB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; [2003] 131 FCR 102).

4. But in any event, on what is before the Court, bias, bad faith, or the apprehension of bias on the part of the Tribunal is not revealed. The applicant, and the applicant wife, attended a hearing pursuant to s.425. The issue of relocation was squarely raised. In the circumstances it was clearly open to the Tribunal to use their physical presence, and their existence in Australia, as one element among many elements in its analysis to find that the applicants could reasonably relocate to another part of India.

5. Any such complaint, therefore, of bias, apprehension of bias or bad faith, which has not been distinctly or clearly made, would not, in any event, be made out.

Conclusion

1. In all, therefore, for the applicants to succeed before the Court, the Court would need to discern jurisdictional error (at least) in the Tribunal’s decision.  As I cannot discern such error from the amended application, the submissions, nor indeed otherwise, this application is dismissed.

I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  C Darcy

Date:  19 January 2010