SZNZT v Minister for Immigration - [2010] FMCA 478

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNZT v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 478

MIGRATION – Refugee Review Tribunal – no failure to consider objections to relocation – Convention nexus – no denial of obligation under s.425 – issue of relocation sufficiently raised – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.424A, 424AA, 425

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; 90 FCR 287 ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 Randhawa v the Minister of Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 Chen Shi Hai (an infant) by his next friend Chen Ren Bing v Minister for Immigration & Multicultural Affairs [1998] unreported FCA (5 June 1998) Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293; (2000) 170 ALR 553; (2000) 74 ALJR 775; [2000] HCA 19 Ram v Minister for Immigration & Ethnic Affairs & the Refugee Review Tribunal (1995) 57 FCR 565; (1995) 130 ALR 314 Applicant A v Minister for Immigration and Ethnic Affairs & Anor (1997) 190 CLR 225 Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55; (2000) 204 CLR 1 SZATV v Minister for Immigration & Citizenship [2007] HCA 40; (2007) 233 CLR 18 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1; (2008) 103 ALD 248; (2008) 249 ALR 58; [2008] FCAFC 138
Applicant:	SZNZT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2653 of 2009

Judgment of:

Nicholls FM

Hearing date:

16 April 2010

Date of Last Submission:

16 April 2010

Delivered at:

Sydney

Delivered on:

12 July 2010

REPRESENTATION

The Applicant:

In Person

Appearing for the Respondents:

Ms J Dinihan

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application made on 2 November 2009 is dismissed.
The applicant to pay the first respondent’s costs set in the amount of $4,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2653 of 2009

SZNZT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made on 2 November 2009 under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 6 October 2009 which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

The Court has before it a bundle of relevant documents (“the Court Book” – “CB). The following is relevantly derived from this.
The applicant, a Sikh, is a national of India who arrived in Australia on 20 November 2008. He applied for a protection visa on 5 January 2009 (CB 1 to CB 30).

Claims to Protection

The applicant claimed to have joined the Indian Army in 1984 and was posted to the border region of Kashmir. During a border skirmish on 15 October 2005 he killed a local resident.
He applied for leave and returned to his home village. Relatives and friends of the dead man found him at his home village, attacked him and his family and threatened to kill them. He was assisted by other villagers to drive these persons away. The applicant returned to duty and he and his family were provided with government accommodation.
When he retired two years later, he and his family returned to his village. He claimed that an “informant” told the friends and relatives of the dead man of his whereabouts, and he and his family were again attacked and threatened. Villagers again came to their rescue.
The applicant claimed that his attackers were “dangerous people” who were “associated with some terrorist group in Kashmir”. He and his family lived in fear and were unable to leave their village. He was told by a “learned man from our village” that no matter where he went in India these people would find him. He was introduced to an agent who unsuccessfully applied to arrange his travel to England. He then obtained a visa for Australia.

The Delegate

The delegate invited the applicant to attend an interview on 26 February 2009. The invitation was sent to the address provided by the applicant for the purpose of receiving correspondence. He did not attend. In the absence of an opportunity to interview the applicant the delegate found he was unable to be satisfied that the applicant was a person to whom Australia owed protection. The application was therefore refused (CB 39 to CB 48).

The Tribunal

The applicant applied for review by the Tribunal on 24 March 2009 (CB 54 to CB 57). He attended a hearing with the Tribunal on 5 May 2009 (CB 63). The Tribunal’s account of what occurred is set out in its decision record largely in the form of questions and answers ([23] at CB 100 to [120] at CB 115).
On 10 June 2009 the applicant appointed a person as his representative before the Tribunal and as the authorised recipient for correspondence. It is not clear if this person was a registered migration agent (CB 74 to CB 75 – see CB 74.8).
By letter dated 6 August 2009 the Tribunal invited the applicant to comment on certain information that it considered would be the reason or a part of the reason for affirming the decision under review. This involved country information relevant to the applicant’s prospects of relocating to another part of India (CB 78 to CB 79).
The applicant responded by letter dated 18 August 2009. The letter provided the applicant’s objections to the proposition that he could safely and reasonably relocate to another part of India (CB 80 to CB 86).
The Tribunal found the applicant to be a reliable witness ([125], [128], [129]), and accepted that: “… the applicant may have been targeted for reasons of imputed political opinions” ([130] at CB 117). However, the Tribunal also found that the past harm, and any future harm, were localised to the region in which the applicant lived and that there was no real chance of harm if the applicant were to relocate ([131]).

Application before the Court

The application to the Court is expressed in the following terms:
“1. The Tribunal erred in law amounting to jurisdictional error in finding that I do not have a well-founded fear of serious harm amounting to persecution for a Convention reason if I return to India, either now or in the foreseeable future, and I am not a refugee. The Tribunal failed to consider that I am a victim of persecution for my religious belief as a member of Sikh religion. The Tribunal ignored my persecution that I experienced prior to my departure from India and made errors of jurisdiction.
2. The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction for its failure to accept me as a credible witness for my claims and refused my application. The Tribunal found that the authority will protect me if returned back to India.
3. The Tribunal failed to consider that I shall not be able to relocate in other part of India for my religious background and the social and economic situations. The Tribunal failed to consider that my life was at risk and I shall face persecution for my religious belief and made errors of jurisdiction.
4. The Tribunal found “it is possible the applicant could suffer serious harm in any future terrorist attack and any attack may be for reasons of the perpetrator’s religious or political beliefs, such attacks would be directed indiscriminately at the public in general not at a particular group to which the applicant belongs or because of an attribute, opinion or anything else that the applicant has or that may be attributed to him.” The Tribunal failed to consider the harm I experienced in India and will also be experiencing if returned back to India and made errors of jurisdiction.”

Before the Court

At the hearing, the applicant appeared in person assisted by an interpreter in the Hindi language. Ms J Dinihan appeared for the first respondent. In addition to the Court Book the Court had before it a written outline of submissions of the first respondent.
When asked for his submissions the applicant responded that he had nothing to say. Even after explaining the purpose of the hearing to him (to see if the Tribunal’s decision contained a “legal mistake”) the applicant was only able to recount some of his claims before the Tribunal to insist that he had, albeit with some help, drafted the grounds of the application, and that they were all “correct”.
After reserving judgment in this matter and during drafting of the judgment a number of additional issues for consideration arose. I gave the parties the opportunity to make further oral submissions. In light of these submissions I could not see any useful purpose in allowing further written submissions (see below beginning at [43]).

Considerations

Ground One

The first ground of the application appears to have two limbs. The first is that the Tribunal erred in finding that the applicant did not have a well founded fear of persecution if he were to return to India because it “ignored” the “persecution” that he experienced prior to his departure. The second is that it failed to consider that he is a “victim of persecution” because of his religious beliefs, that is as a member of the Sikh religion.
The applicant’s claims as set out in his written statement and his evidence at the hearing are essentially that as a member of the Indian Army, while on posting to the Kashmir border region, he became involved in a skirmish where he killed a local person. The deceased person’s relatives and friends came to his village on at least two occasions some years apart and threatened him and his family. He was fearful of leaving his village.
Whatever the applicant may now mean with the use of the term “persecution” in ground one, the complaint in the circumstances can only properly be understood as a claim that the Tribunal “ignored” his account of past harm.
On any plain reading of the Tribunal’s decision record this must be rejected. The applicant’s factual account of past harm was not only not ignored by the Tribunal, it was positively accepted (see [130] at CB 117 to CB 118). This limb of the complaint does not succeed.
It may be that the use of the term “persecution” is meant to convey a disagreement with the Tribunal’s ultimate conclusion that the applicant did not have a well founded fear of Convention related persecution.
If so this misconceives the basis for the Tribunal’s ultimate conclusion. The Tribunal accepted the applicant’s claims to fear persecutory harm in his local area. But it found that he could safely relocate away from there to another part of India. The Tribunal’s approach in this regard is considered below.
The second limb also does not reveal error on the part of the Tribunal. Any plain reading of the applicant’s claims reveals, as the Minister correctly submits, that a claim to fear persecutory harm on the basis of his Sikh religion was not a claim made by the applicant. Nor can it be seen to clearly arise on the material before the Tribunal (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58]). The Tribunal is not required to deal with a claim not made or which does not arise from the circumstances presented (Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; 90 FCR 287, ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184. See also S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473).
It may be that the applicant seeks to refer to some difficulties in performing his religious duties if he were to relocate.
Some three months after the hearing the Tribunal wrote to the applicant and invited his comments on certain information that it said would be the reason or part of the reason for affirming the decision under review (CB 78 to CB 79).
This information was independent “country information” about which the Tribunal had advised the applicant at the hearing, which went to the issue of his being able to reasonably and safely relocate to another part of India away from his home village.
The applicant’s response is contained in his letter of 18 August 2009 (CB 80 to CB 86). Relevantly, one of the applicant’s objections to relocation was:
“I was born in a Sikh family. I am not a highly educated person. I do not have any profile socially and economically.
• India is a Hindu majority country. Sikhs do not receive well treatment from Hindus. They are discriminated. If I settle in a new place it is easy for other people to know about my religious belief and background from my dress.
• India is a multi lingual country. It is not possible for me to be relocated everywhere for my language difficulties.
• The facilities to perform our religious rituals are not available everywhere. It will also limit my opportunities to be relocated.”
The Tribunal accepted the applicant’s account of past harm as it related to his local area. In relation to relocation, the context in which the relevance of the applicant’s religion was raised, the Tribunal dealt with the applicant’s submission that it was not possible for him to relocate because: “Hindus discriminate against Sikhs” and the difficulties with the performance of religious rituals elsewhere in India. The Tribunal preferred country information available to it which was that in some states in India Sikhs predominate. It found that the applicant could reasonably relocate in terms of not being discriminated against for his religion and the availability of relevant religious rituals (see [133] at CB 118 to CB 119).
No error is revealed in this regard. This finding by the Tribunal was reasonably open to it on what was before it. Relevantly, the Tribunal did not fail to consider this objection to relocation as it was put by the applicant and the context in which it was put.

Ground Two

In ground two the applicant complains that the Tribunal failed to “accept” him as a credible witness. Further, in what appears to be a separate complaint, the Tribunal found that the “authority”, presumably the Indian state, would protect him. I will deal with this latter complaint below.
The applicant’s complaint about the Tribunal’s credibility finding is misconceived. First, as the Minister submits, credibility findings are within the range of functions of the Tribunal. On its own a finding as to an applicant’s credibility is a finding of fact for the Tribunal to make (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 (“Durairajasingham”).
But in this case the Tribunal plainly did not make any adverse credibility finding in relation to the applicant. The Tribunal accepted the applicant’s factual account that he feared harm from the relatives and friends of the man he had killed ([125] to [130] at CB 117). I note in particular:
“… The Tribunal found the applicant to be a reliable witness and therefore accepts his claims.” ([129] at CB 117)
Before the Court, amongst other things, I particularly invited the applicant to focus on the grounds of the application and to provide the Court with any submission or arguments in support. Relevantly, the applicant submitted that he had not read the Tribunal’s decision record, nor had it translated for him, nor even explained. He insisted that he had drafted what was in the application to the Court himself and sought the assistance of a friend because he could not speak English. His response to the difficulty presented in drafting grounds asserting error in a decision which he had not read or had explained to him was to assert simply that what was in ground two in particular was “correct”.
The short answer to the applicant, in light of what is plainly set out in the Tribunal’s decision record is that his claim that the Tribunal failed to find him as a credible witness must be rejected.

Ground Three

In ground three the applicant takes issue with the Tribunal’s finding that he could reasonably and safely relocate to another part of India.
The Tribunal determined the review on the basis that while it accepted that the applicant had been targeted as claimed in the past, that this past harm was: “… localized to the regions where the applicant had lived and worked” ([131] at CB 118), and the applicant could nonetheless safely and reasonably relocate to other parts of India (see in particular [140] at CB 120 to CB 121).
Consideration of the applicant’s additional complaint about the availability of state protection as expressed in ground two was also considered in this context.
The applicant has not put before the Court any evidence, say by way of a transcript, to challenge the Tribunal’s presentation of what it said had occurred at the hearing with the applicant (see [23] at CB 100 to [120] at CB 115).
This account reveals that the issue of relocation was raised with the applicant at the hearing (see [109] at CB 113 to [114] at CB 114). Following the hearing the Tribunal wrote to the applicant. The letter was properly sent to his migration agent (CB 77 to CB 79). This letter invited the applicant’s comments on information relevant to the issue of relocation.
The applicant replied by letter dated 18 August 2009 (CB 80 to CB 86). He set out his objections to relocation and the reasons why he believed he could not reasonably and safely relocate to parts of India.
The Tribunal’s relevant reasoning, and in particular how it came to consider the issue of relocation and the circumstances relevant to this consideration, was one of the issues that raised some uncertainty when I came to consider this matter and necessitated a second hearing and further submissions.
The issue is whether, in considering relocation, the Tribunal acted inconsistently with relevant findings made in relation to the conclusion as to local harm. Further, whether this inconsistency affected the Tribunal’s consideration of the applicant’s objections to relocation. That is, whether it properly dealt with all of the objections such that it did not fall into jurisdictional error. (See Randhawa v the Minister of Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 (“Randhawa”) at 442-443 and SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 (“SZMCD”) at [124].) The resolution of this issue requires some background exposition.
It is of course the case that an applicant who fears harm and has then established that this is a fear of persecution must also satisfy the Tribunal that the persecution is for at least one of the reasons set out in Article 1A(2) of the Refugees Convention. That is that there is a connection or nexus between the persecution and one of the Convention grounds (see Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559).
That connection arising as it does from the words at Article 1A(2) “for reasons of” (“… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion…”) imports, as was said in Chen Shi Hai (an infant) by his next friend Chen Ren Bing v Minister for Immigration & Multicultural Affairs [1998] unreported FCA (5 June 1998) “… a requirement for a causal connection between the apprehended persecution”, and as in that case the membership of a relevant group.

When this matter ultimately went on appeal to the High Court (Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293; (2000) 170 ALR 553; (2000) 74 ALJR 775; [2000] HCA 19 (“Chen Shi Hai”)), Kirby J, in a separate but concurring judgment to that of the joint judgment in that matter said (at [69]):
“In the end it is necessary for the decision-maker to return to the broad expression of the Convention, avoiding the siren song of those who would offer suggested verbal equivalents. The decision-maker must evaluate the postulated connection between the asserted fear of persecution and the ground suggested to give rise to that fear. The decision-maker must keep in mind the broad policy of the Convention and the inescapable fact that he or she is obliged to perform a task of classification.”
Further, the motivation of those who are said to inflict the harm is relevant to this consideration. In Ram v Minister for Immigration & Ethnic Affairs & the Refugee Review Tribunal (1995) 57 FCR 565; (1995) 130 ALR 314 (a case involving membership of a particular social group), at 5 per Burchett J:
“Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors… There is thus a common thread which links the expressions ‘persecuted’, ‘for reasons of’, and ‘membership of a particular social group’. That common thread is a motivation which is implicit in the very idea of persecution, is expressed in the phrase ‘for reasons of’, and fastens upon the victim's membership of a particular social group. He is persecuted because he belongs to that group.”
See also as approved in Applicant A v Minister for Immigration and Ethnic Affairs & Anor (1997) 190 CLR 225 at 284.
The thread articulated above, motivation, persecution “for reasons of” applies equally to race, religion, nationality or political opinion as it does to membership of a particular social group (see for example, Chen Shi Hai at [12] and [24]). For current purposes, therefore, the words “imputed political opinion” can be properly substituted for “membership of a particular social group” in the extract above.
I note also relevantly that in Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55; (2000) 204 CLR 1 at [102] per McHugh J:
“In the present case, the Full Court also held that it was necessary to consider ‘the purpose and nature of the war, the way it is conducted, and the objectives sought to be achieved by the war’ to determine whether an applicant for refugee status meets the Convention definition. I agree with other members of the court in this case that the tribunal should not search for the ‘motivation’ of war. Nevertheless, the Convention requires the tribunal to ascertain the motivation for the allegedly persecutory conduct which an applicant for refugee status fears. In this case, among the questions which the tribunal should have asked were: (a) what harm does the applicant fear on his return to Somalia? (b) is that fear well-founded? (c) why will the applicant be subjected to that harm? and (d) if the answer to (c) is ‘because of his membership of a particular social group’, would the harm constitute persecution for the purpose of the Convention?” [Footnote omitted.]
In the current case the applicant’s factual account accepted by the Tribunal was that:
1)He was a member of the Indian Army (CB 27).
2)He was posted to the Kashmir border region (CB 27).
3)In a skirmish on 15 October 2005 he killed a local resident (CB 27 and [41] at CB 102).
4)This person was a farmer who was at the place of the skirmish because he was collecting wood and “grazing his goats and sheep” ([116] – [117] at CB 114).
5)He returned home in December 2005 on leave. His village was 100km from Kashmir ([28] at CB 101). Four relatives and friends of this deceased person came to his house in his village and attacked him and intended to kill him and his family (CB 27 and [45] at CB 103 to [58] at CB 105).
6)He was saved by the intervention of other villagers. He returned to his post and was given permission to bring his family who stayed in government accommodation (CB 27 and [60] at CB 105 to CB 106).
7)Two years later, when he retired, he returned with his family to his village (CB 27).
8)An “informant” told the relatives and friends that he had returned. They again attended his home and family. There were three of them ([76] at CB 108). He was threatened that if they found him or his family outside the village they would be killed and there would be no one to “save” them (CB 28 and [71] at CB 107).
9)Notwithstanding that he had given evidence that he had been attacked ([71] at CB 107), he then gave evidence that the “attack” occurred when he was not at home ([72] at CB 107). They spoke to his family and his wife and asked for his whereabouts ([78] at CB 108).
10)They told his brother that the person the applicant had killed was their brother and they needed to take revenge ([91] at CB 110).
11)Villagers again came to their rescue (CB 27 and [75] at CB 108).
12)These “people” were “dangerous” and “associated with some terrorist group in Kashmir” (CB 27).
13)He and his family lived in fear and were afraid to leave the village (CB 27).
14)He decided to leave and ultimately came to Australia (CB 27 and [79] at CB 108).
15)His wife and family are still at the village ([80] at CB 109).
16)“They” are only after the applicant, not his family ([80] at CB 109).
17)Since he left “they” came to his house another two times. His wife told them he had left and that she did not know where he was ([96] at CB 111).
Notwithstanding the inconsistent and somewhat implausible aspects of the applicant’s factual account, it is of course a matter for the Tribunal whether it found the applicant to be a credible witness in this regard and to accept his claims (Durairajasingham).
For example, the applicant’s account is that four men associated with “terrorists” from Kashmir travelled across 100kms or miles ([64] at CB 106, or “100kms from Kashmir – [28] at CB 101), they were armed with a gun, they fired a shot ([57] at CB 105), they threatened the applicant, yet curiously neither the army officer or the police to whom this first incident was reported did anything effective to investigate an armed incursion some distance into Indian soil by a “dangerous” group of people who were associated with Kashmiri “terrorists”. This group repeated this exercise two years later, again with no apparent concern by the Indian authorities.
In any event, the issue however is whether the Tribunal properly understood the concept of Convention nexus as outlined above and how it should be applied. Of greater importance is whether, if there was some error, it infected the issue on which the Tribunal’s decision turned, namely that the applicant could reasonably and safely relocate to another part of India.
The Tribunal relevantly found (at [130]):
“The Tribunal accepts that the applicant may have been targeted for reasons of imputed political opinions. In 2005 when working as a soldier in the Indian Army whilst protecting the border in Kashmir engaging in the government’s political agenda the applicant was engaged in crossfire and a civilian was killed by a bullet fired by the applicant. Thereafter the victim’s brother and others visited the army barracks looking for the applicant to avenge the death of this man. When told he was on leave they came to his village at midnight looking for him threatening to kill him and his family, they left when members of the local community started to gather around to see what was happening. The applicant and his family moved into army barracks for the next two years protected by the army, a department of the government. The applicant and his family were required to leave when the applicant retired from the army because he had served his term. After this the applicant and his family moved back to the village and those who had previously threatened the applicant came once again. The applicant was away from his house working on their farm. They came on a day in winter at 4pm and called to the applicant’s home where his wife told them she did not know of the applicant’s whereabouts. They threatened the applicant that if he or his family were found outside the village there would be no one available to save them as there had been in the village where they had been saved by the other villagers. The applicant and his family then lived in fear and were frightened to venture outside the village. The applicant believes that those threatening his life have resources and the ability to find the applicant and will kill him. Those threatening the applicant have been back to his village twice since he has left India. The Tribunal finds these events occurred because of his past employment in the Indian army fulfilling the government’s political agenda and from which he was required to resign in 2007 because he had served his term.”
The Tribunal accepted the applicant’s factual account. It accepted that the applicant had a fear of the friends and relatives of the person he had killed. The difficulty is that there is nothing in the applicant’s factual account to support the Tribunal’s subsequent conclusion that there exists a connection to one of the Convention grounds. That is political opinion (imputed).
It was the applicant’s own evidence that the people who threatened him did so because he had killed their “brother”. There was nothing in the applicant’s account to even suggest that he was targeted for any other reason, let alone because of his membership of the armed forces or that he was furthering the Indian government’s political agenda, or for that matter because he was a Sikh. Their motivation, therefore, based on the applicant’s own evidence, was that he had killed their “brother” and they wanted revenge.
While the applicant’s claims included that these people were: “… associated with some terrorist group in Kashmir”, there was no suggestion that he was being targeted for any reason related to or arising from this claimed association. The applicant’s claims, when plainly understood, were that these people were motivated to harm the applicant for the sole reason that he had killed their brother and friend.
There was no evidence that any other members of the armed forces were targeted by this group of 3 or 4 persons, nor was there any evidence that they targeted other villagers or even the applicant’s brother to whom they reportedly spoke. Ultimately it was the applicant’s own evidence that “they” interacted only with him and not even his wife or children.
The Tribunal’s finding that nonetheless there was a Convention nexus on the basis of his membership of the Indian army and that he would be perceived to be implementing a political agenda was described in submissions before me as a “stretch”. With respect, my view is that it goes further. There was simply no basis on the evidence before the Tribunal for it to make that finding. There was no basis to assert that it was the motivation of those from whom the applicant claimed to fear harm. The only “element” or “attitude” on their part was, as the applicant himself said, revenge because he killed their “brother”. I cannot see that the necessary causal connection between the apprehended persecution and any imputed political opinion exists on the accepted facts before the Tribunal.
In any event, as Ms Dinihan submitted, the Tribunal’s conclusion in this regard on its own was not the issue that determined the review. It is not necessary therefore to consider, for current purposes, whether that conclusion on its own constitutes an error in the exercise of jurisdiction, considering also that the line between findings of fact by the Tribunal and merits review by this Court is sometimes a fine line.
The applicant’s objections to relocation can only properly be understood with reference to those relevant parts of his factual claims about what he said had occurred in India in the past. A factual account which the Tribunal accepted.
In his initial written statement the applicant stated that the people from whom he feared harm were, amongst other things: “… very dangerous people and are associated with some terrorist group in Kashmir” (CB 27).
On the Tribunal’s report of what occurred at the hearing the applicant relevantly told the Tribunal that the people from whom he feared harm would find him anywhere in India, notwithstanding the large population of India. The applicant also gave evidence that:
“… they have contacts they are rich people they have contacts in high profile. They also have contacts with Pakistan which is a Muslim country.” ([114] at CB 114)
In its subsequent letter the Tribunal invited the applicant to comment on certain country information relevant to the issue of his relocating to another part of India. This information related to the freedom of movement available to Indian citizens within India. A freedom respected by the government.
The applicant by this time had engaged the services of a migration agent (CB 74 to CB 75). He responded to this letter. He said relevantly in this letter:
1)CB 80.9: “My opponent group was linked with Muslim terrorists… I was threatened to be killed…”
2)CB 80.10: “Now the question arises, may I be relocated to any other parts of India and safe my life.”
3)CB81.2: “If relocated, my life will not be safe…”
4)CB 81.4: “• The political [landscape] of India has been changing every day. It is in the interests of Muslim terrorists who infiltrate across the Pakistan border… My opponents are linked with terrorists. It is not difficult for them to follow me in any part of India as the authority is not able to limit their by any means”.
The question arises, in determining that the applicant could reasonably and safely relocate to another part of India away from his local area, whether the Tribunal dealt with all of the applicant’s objections to relocation and as these must be understood in light of the totality of his claims to fear persecutory harm.
Ultimately the applicant’s claims as they relate to the issue of relocation were to emphasise the terrorist links of the people who were pursuing him. The previous claim of association with Kashmiri terrorists became a claim that this group: “… was linked with Muslim terrorists” in his letter of 18 August 2009 (CB 80.9).
In this context the applicant claimed that relocation was not possible for him because the political landscape in India had changed to the extent that “Muslim terrorists” infiltrated “across the Pakistan border” and as his “opponents” were linked to the terrorists it would not be difficult for them to follow him anywhere in India, particularly as the authorities were not able to “limit” their incursions (CB 81.3).
The applicant made reference to a number of news reports in support of this claim (CB 81.5 to CB 85.4).
This mirrored and supported what the applicant reportedly told the Tribunal at the hearing. Namely that they would find him anywhere in India notwithstanding the large population and because of their “high profile” contacts (see [63] above).
The Tribunal sought to directly address what the applicant wrote in his letter as his reasons for not being able to relocate in [140] of its decision record (CB 120):
“The Tribunal has considered the applicant’s claims related to terrorist attacks in his letter to the Tribunal dated 18 August, 2009, as reasons why he is unable to relocate within India. The Tribunal accepts that terrorist attacks occur across India. The Tribunal does not accept the events that the applicant cites are related specifically, to him. The Tribunal finds that while it is possible the applicant could suffer serious harm in any future terrorist attack and any attack may be for reasons of the perpetrator’s religious or political beliefs, such attacks would be directed indiscriminately at the public in general not at a particular group to which the applicant belongs or because of an attribute, opinion or anything else that the applicant has or that may be attributed to him. Therefore, any such terrorist attack would not be discriminatory conduct and not meet s.91R(1)(c) of the Act. The Tribunal finds this harm would not constitute persecution. Based on this evidence, the Tribunal finds that it is safe and reasonable for the applicant to relocate.”
The problem that immediately arises is that, elsewhere in its analysis relating to local harm, the Tribunal accepted that the people whom the applicant had said threatened him had in fact done so and further that they had links with Kashmiri terrorists. Importantly, the Tribunal found that these people targeted the applicant for “reasons of imputed political opinions” ([130] at CB 117.9).
Yet at [140] the Tribunal rejects the proposition that terrorists would target the applicant in any terrorist attack for any political reason. Having accepted that the relatives of the person whom he had killed were in part motivated by a political opinion imputed to the applicant, the Tribunal’s reasoning appears contradictory. This is of concern given that in his response to the Tribunal’s raising of the issue of relocation the applicant specifically linked the capacity of the group to find him because of their terrorist links.
Ultimately, I was persuaded by Ms Dinihan that on a holistic and fair reading of the Tribunal’s analysis the Tribunal adequately dealt with the applicant’s objections to relocation as properly understood. That is, the Tribunal considered whether, in the applicant’s circumstances and with reference to his particular objections to relocation, it was practicable for him to relocate to avoid the persecutory harm in his local area (SZATV v Minister for Immigration & Citizenship [2007] HCA 40; (2007) 233 CLR 18, Randhawa per Black CJ at 441, SZMCD at [123]-[124]).
Having found that the applicant would be targeted for reason of imputed political opinion by the relatives and friends of the man he had killed ([130]), the Tribunal found the past harm was localised to the region where he lived ([131]).
What follows at [132] to [140] must be read as a whole. Each of these paragraphs deals with an aspect of the applicant’s objection to relocation. It is when they are read as a whole that the seeming inconsistency referred to above is, on balance, explained.
The paragraphs address:
1)[132]: The applicant’s claim that those looking for him could easily find him because they had contacts, networks and high profile contacts. The Tribunal found that, in light of country information available to it which by inference at least appears to outweigh the applicant’s concern, the applicant could relocate particularly to those parts of India where Sikhs predominate and he would be “lost within the vast population living within that safe place”.
2)[133]: The Tribunal dealt with the applicant’s objection to relocation because Hindus were said to discriminate against Sikhs. The Tribunal found that the applicant could relocate safely to one of those parts of India where Sikh communities predominate and are able to conduct their religious observances without discrimination.
3)[134]: The Tribunal dealt with family difficulties put forward as obstacles.
4)[135]: The Tribunal dealt with financial difficulties put forward in his letter of 18 August 2009.
5)[136]: The Tribunal did not accept the applicant’s assertion put forward in his letter of 18 August 2009 that the authorities would not protect him because he is a “low profile person”. The Tribunal noted efforts made by local police when he reported the first attack to them.
6)[137]: The Tribunal acknowledged the applicant’s assertion also made in his letter that relocation is stressful and painful for him and his family. But that this would occur wherever the applicant moved away from his local area. Presumably this included Australia.
7)[138]: The Tribunal addressed the applicant’s wife’s situation and found that she could reasonably relocate to another part of India where, based on what was before it, it was preferable to relocation to Australia.
8)[139]: The Tribunal addressed the applicant’s objections as they related to his children.
9)[140]: The Tribunal addressed the applicant’s objections in relation to terrorist attacks in general as set out in his letter.

I agree with Ms Dinihan that, when [132] and [140] are read together, and when read in context with, in particular, [136], the Tribunal addressed the totality of the objections to relocation as it was said to arise from that characteristic of the group which sought to harm him, being their high profile links with terrorists.
Even in his letter the applicant’s claims were that the group from whom he feared harm were not themselves terrorists as such, but linked with “Muslim” terrorists. The applicant’s objection to relocation in this regard, when properly understood, therefore was that because of these links his “opponent” group would be able to find him or that he would become the target of terrorist attack because of their links.
When fairly read [132] addresses the applicant’s objections to relocation based on the group itself, which had “high profile contacts” and [140] addresses the more general objection of harm from terrorist attacks. The link between the group and terrorists (whether Kashmiri or Muslim or both) is therefore adequately addressed.
In all, therefore, the Tribunal’s decision affirming the delegate’s decision was based on its finding as to the applicant being able to reasonably and safely relocate. The constituent findings were open to the Tribunal. The Tribunal complied with the requirements as explained by relevant authorities.

Ground Four

The applicant takes issue with the Tribunal’s finding that while it was possible that he could suffer serious harm in any future terrorist attack, it nonetheless found that such an attack would not be indiscriminately directed to him and not for any reason attributed to him personally.
The relevant part of the Tribunal’s analysis is at [140] at CB 120 (see [71] above).
The Tribunal’s analysis at [140] must be understood in the context of how the applicant presented and developed his claims and a holistic view of the Tribunal’s approach to dealing with them.
As set out above, the applicant’s claims to fear harm were initially said to emanate from the relatives and friends of the man he had killed and who had links with Kashmiri or Muslim terrorists. As an objection to relocation the applicant stated that he would be found anywhere in India by these people because of their links with terrorists.
What is set out at [132] can, in context, be seen to address this objection. What is set out at [140] deals with any more general fear of terrorist attack that may be said to arise from the circumstances presented by the applicant as part of his objection to relocation. There is no error in the Tribunal seeking to deal additionally with this more general aspect of the applicant’s claims. The relevant sentence in the applicant’s letter of objection is (at CB 86.4):
“Many persons like me become the victim of terrorist attack and killed all over India.”
In all, therefore, ground four does not reveal error.
A second issue which arose for further consideration can more generally be linked to whether the Tribunal properly fulfilled its obligation to provide a meaningful opportunity for a hearing pursuant to s.425. This follows from the end of the Tribunal’s account of what occurred at the hearing.
At [118] the Tribunal reports:
“The Tribunal advised that the hearing was about to end and advised to the following effect:
When writing this decision and I might discover some information that may be the reason to refuse your application if that is the case I will invite you back to another hearing rather than send it to you in a letter which would require your written response. You would have to get a translator to read the Tribunal’s letter to you.
The applicant responded to the following effect:
I only want to request that you help me to save my life so I can see my children again.
[119] The Tribunal advised the applicant to the following effect?
I will look at all the information and I will make my decision on the evidence.
Now is there anything else that you thing is important that I haven’t covered that you think may help your application.
The applicant responded to the following effect:
My only request is I can’t see my children.
[120] The Tribunal asked the interpreter to take the applicant to teh Red Cross Asylum Seekers Assistance and after that to the train station because that is where his is to meet his friend.”
This concern in part does arise from the lack of clarity in the Tribunal’s presentation of its relevant thought process and its style and presentation of its account of the hearing.
Following the hearing, the Tribunal wrote to the applicant by letter dated 6 August 2009 (CB 77 to CB 79 and [121] at CB 115). As is evident from its letter and as the Tribunal described it in its decision record, the information was independent country information relevant to the issue of relocation.
With reference to the relevant statutory regime (s.424A, s.424AA, and s.425) it is unclear what the Tribunal was doing. At [118] the Tribunal told the applicant if it discovered some “information” that would be the reason for refusing the application it would invite the applicant to another hearing rather than send the information in a letter to him.
If the Tribunal had general country information in mind, then such information would be excluded from the operation of s.424A(1) by reason of s.424A(3)(a). On its face there would have been no need for the Tribunal to write to the applicant (s.424A(1)) or to put this information at a subsequent hearing through the facility of s.424AA.
With SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 (“SZBEL”) and s.425 in mind, the reference to another possible hearing also raises the question as to whether the Tribunal had in mind the issue of relocation and the information relevant to it. Remembering that relocation ultimately turned out to be the determinative issue in the review. This raises the further question of whether the Tribunal had adequately raised this issue for consideration at the hearing. Noting also that relocation was not an issue determinative of the application before the delegate.
The answer to these questions must be informed with reference to the hearing as a whole. The only account before the Court of what occurred is the Tribunal’s own account. The applicant has not challenged this account. Certainly not with any evidence to the contrary.
I should just note that, as Tribunal accounts of hearings go, this Tribunal employed the somewhat unusual methodology of purporting to provide a transcript or its own rewritten version of a transcript. If one of the reasons for providing a decision record, in context pursuant to s.430, is to inform and particularly to inform the unsuccessful applicant as to the reasons for refusal, then in the current circumstances the Tribunal has made the applicant’s task that much harder.
The Tribunal used the words: “The Tribunal asked the applicant to the following effect” 67 times. It used almost identical words (substitute “informed”, “put” or “advised” for “asked”) a further 15 times. It used the words: “The applicant responded to the following effect”: 80 times.
The applicant cannot speak, read or write English (see Item 11 at CB 12). He is dependent on others to translate the decision record for him. The fact that he told the Court he did not take such steps does not detract from this concern. The Tribunal’s use of this format in my view can only hinder the process of the applicant being able to focus on the essential material while he and the translator are diverted by endless and unnecessary repetition.
However, any failure in this regard does not reveal jurisdictional error (SZBEL at [17], Durairajasingham at [67] to [70] per McHugh J).
What remains, however, is what was the Tribunal purporting to do at the conclusion of the hearing, and if in fact what was in its mind was the issue that led to the refusal of the decision, did the Tribunal provide the applicant with a meaningful opportunity to address the determinative issue.
It is clear that almost from the beginning of the hearing the applicant’s behaviour was such as to give rise to the issue of whether the applicant was able to effectively participate in the hearing such that it could be said the Tribunal offered a meaningful opportunity to him pursuant to s.425. (See for example [31] to [34] at CB 101, [82] to [87] at CB 108).
Towards the end of the hearing, as referred to above, the Tribunal reports ([118] at CB 114):
“The Tribunal advised that the hearing was about to end and advised to the following effect:
When writing this decision and I might discover some information that may be the reason to refuse your application if that is the case I will invite you back to another hearing rather than send it to you in a letter which would require your written response. You would have to get a translator to read the Tribunal’s letter to you.
The applicant responded to the following effect:
I only want to request that you help me to save my life so I can see my children again”.
The applicant commenced the hearing, and at times subsequently exhibited some agitation and difficulty (see [31] at CB 101). The Tribunal at different times was properly concerned as to the applicant’s capacity to participate in a meaningful way (see [32] to [34] at CB 101). At a point a little over an hour into the hearing (see CB 64 – adjournment at “14.14”, and hearing commenced either “12.58” – CB 63.9 or “1.09am/pm” CB 63.3) the Tribunal reports that the applicant became distressed and explains his difficulties (see [81] to [86] at CB 109).
The hearing was held on 5 May 2009 ([23] at CB 100). Other than the applicant notifying the Tribunal on 10 June 2009 (CB 74) that he had appointed an agent to represent him and to be his authorised receiver for the purposes of receiving correspondence, nothing relevant appears to have happened until 6 August 2009 when the Tribunal sent a letter to the authorised recipient (CB 77) for the applicant (CB 78 to CB 79).
Relevantly, the letter contains the following:
“The Tribunal has decided to write to you rather than schedule another hearing for the following reasons:
• You expressed concerns regarding travel costs that would be associated with another hearing.
• Since the hearing you have appointed a representative who will be able to translate this letter to you and assist you to write a response.
You are invited to comment on or respond to information that the Tribunal considers would, subject to any comments or response you make, be the reason, or a part of the reason, for affirming the decision that is under review.
That particulars of the information are:
• As you were advised at the hearing, there is country information that you could move to another place in India and be safe. There is independent country information suggesting that relocation in the case of an Indian resident is feasible. There are no checks of newcomers to any part of India and there is no system of registration. However, if you were a high-profile Indian citizen relocation in India would be more difficult. The Tribunal finds that you are not a person in India with a high profile.
This information is relevant to the review because information before the Tribunal indicates that it would be possible for you to relocate to safer location in India. This may lead the Tribunal to affirm the delegate’s decision.
You are invited to give comments on or respond to the above information in writing.
Your comments or response should be received at the Tribunal by 20 August 2009. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.
If you cannot provide your written comments or response by 20 August 2009, you may ask the Tribunal in writing for an extension of time in which to provide the comments or response. If you make such a request, it must be received by the Tribunal before 20 August 2009 and the request must state the reason why the extension of time is required.
The Tribunal will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
If the Tribunal does not receive your comments or response within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain your views on the information.”
The plain language of this letter clearly invokes the language of s.424A of the Act. The applicant is asked to comment on information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. The Tribunal’s notification that it would proceed to a decision without taking further action if the applicant did not respond within the time provided and its notification that he could ask for an extension of time are elements that, in context, allow the strongest inference to be drawn that this is a letter sent pursuant to s.424A.
The “information” which the Tribunal put to the applicant in the letter was of two types. The first was, as the Tribunal states, independent country information. This appears to be general information of a non in personam nature. Consideration of the relevant part of the hearing ([110] at CB 113) could add to the conclusion that this is the case.
As such this information falls squarely within the exception contained in s.424A(3)(a) from the obligation in s.424A(1).
The second type of “information” is to convey a “finding” said to have been made by the Tribunal that the applicant was not a person in India with a high profile. What is of immediate concern is whether the Tribunal had already pre-judged a part of the applicant’s evidence relating to relocation while at the same time inviting his comments on “information” relevant to this issue. Consideration as to whether any apprehended bias can be made out is set out below.
For the immediate purpose this “information” at best could be said to be part of the Tribunal’s thought process, its view of the applicant’s evidence, and even that in its terms it does not contain a denial of the applicant’s claim to protection. As such this would not be “information” for the purposes of s.424A(1) (see SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 at [17] and [18]).
If the Tribunal did not have to put this information to the applicant in writing pursuant to s.424A then what was the purpose of the letter?
It may be that the Tribunal merely wished to put this information and its view of the applicant’s profile to him for comment in an abundance of procedural fairness.
The preferable view, however, may be that the Tribunal sent this letter because of what it said at [118] at CB 114 (see [89] above). Certainly the initial language of this letter would support this view.
At the hearing the Tribunal said that if it were to “discover some information” relevant to refusing the application the applicant would be invited to another hearing, rather than sending it to the applicant in a letter.
At this stage it is unclear whether the Tribunal was referring to “information” within s.424A(1) or exempt from this section or even not “information” at all. The word may have been used in some other sense at this time. But even if it was information for the purpose of s.424A, it may be that the Tribunal intended to put such “information” to the applicant through the avenue of s.424AA and then rely on s.424A(2A) to meet any obligation pursuant to s.424A.
The subsequent letter, however, could suggest that the Tribunal was proceeding pursuant to s.424A. However the fact that none of the “information” in the letter gave rise to an obligation pursuant to s.424A raises the question as to what the Tribunal was purporting to do.
One explanation could be that the Tribunal did not understand the true nature of “information” under s.424A as explained by the High Court or did not understand what comes within the exception in s.424A(3). Another may be that the Tribunal did understand but that it felt compelled to offer the applicant some further opportunity.
But a further opportunity in what context? The Tribunal subsequently formed the view, as expressed in its decision record, that the applicant’s factual account was credible, but that he could safely and reasonably relocate.
On the Tribunal’s own account it told the applicant that if it discovered “some information” to refuse the application the applicant would be given an invitation to another hearing. Given that the “information” put in the letter was not “information” for the purposes of s.424A it fell into one of the exceptions from the obligations set out in that section, in my view an inference may on balance be reasonably drawn that the Tribunal’s intention at the hearing was to seek to convey to the applicant that a further opportunity at a hearing would be provided to him, to address “the reason to refuse your application”.
This Court is often called upon by those representing the Minister in matters of this type to remember that this is a lay Tribunal and that technical or strict legal meanings should not be overzealously applied to the language used by the Tribunal.
In my view this reminder is apt in this case with the use of the word “information” at [118] (at CB 114). For the reasons that follow I am on balance satisfied that what the Tribunal was seeking to convey at the end of the hearing was that if, in considering the applicant’s “information” and “evidence” (see [119] at CB 115), it considered there was something further that required an opportunity for him to comment about something that would lead to the refusal of the application, then he would be invited to another hearing.
With reference to its subsequent letter, and ultimately its decision record, this was the matter of relocation. In a hearing that lasted over 2 hours and twenty minutes (CB 63), even taking out half an hour for the adjournment in the middle of the hearing (CB 64) involving over 90 questions, the Tribunal spent a comparably small, if not miniscule part of the hearing on the very issue that determined the review ([109] at CB 113 to [115] at CB 114 – on a generous view of some of the questions asked).
Having told the applicant that, if necessary, he would be invited to another hearing, the Tribunal decided to write to him instead ([118] at CB 114 and CB 78). The reasons that the Tribunal gave were that the applicant had expressed concerns regarding travel costs that would be associated with another hearing and that the applicant’s recently appointed representative would be able to translate the letter for him and assist in a response.
The only evidence before the Court as to the first reason is ([85] at CB 109):
“The applicant advised that it is very difficult for him to come back because he can’t read or write and it is not easy for him. The interpreter advised the Tribunal outside the hearing room and during the adjournment that the applicant was concerned about being required to come back because it costs $8.00 in fares.”
I have some concern that in the absence of anything else the Tribunal appears to have relied on what the interpreter advised the Tribunal outside the hearing room during the adjournment as to what the applicant was allegedly said to be concerned about. Why the Tribunal spoke to the interpreter outside the hearing room remains unexplained.
First, whatever the Tribunal did with its letter of 6 August 2009 there is no jurisdictional error in putting this “information” to the applicant pursuant to s.424A(1) in circumstances where there was no statutory compulsion to do so.
Second, on balance and at least on a fair reading of its account, the Tribunal did sufficiently raise the issue of relocation with him at the hearing. As was explained in SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1; (2008) 103 ALD 248; (2008) 249 ALR 58; [2008] FCAFC 138 per Besanko J at [103]:
“… In order to succeed in showing that s.425(1) has not been complied with, an applicant for review must show that there is a matter which is an issue arising in relation to the decision under review and that he was not given the opportunity to appear before the Tribunal to give evidence and present arguments relating to that issue because it was not apparent to him that it was an issue and he was not warned by the Tribunal that it was or may be an issue. That is the nature of the obligation, although it must be accepted that questions of fact and degree will often be involved. Furthermore, there is a distinction between evidence relating to an issue and the issue itself and it seems to me that not every matter which might engage the obligation in s.424A involves a new issue or a further issue or a previously unidentified issue.”

The Tribunal’s questioning beginning at about [109] to [115] can fairly be seen to be directed to the issue of some of the elements relevant to relocation. In my view this sufficiently meets the requirement in SZBEL. The applicant was put on notice. There is no requirement for the Tribunal to indicate that the applicant’s objections would not be sufficient for the Tribunal to find for him on this issue.
Third, on any fair comparison the Tribunal’s subsequent letter did not raise any new issue. It expanded and provided further detail in relation to the issue of relocation. On this basis the Tribunal did not need to reconvene another hearing. In its letter the Tribunal can be fairly seen as putting its thought processes to the applicant. No error is revealed in this regard.
A third matter that arose for subsequent consideration arose from the Tribunal’s letter of 6 August 2009. In setting out the particulars of information in respect of which it sought comment the Tribunal also said (CB 78.7):
“… The Tribunal finds that you are not a person in India with a high profile…”
The question that arises is whether, in presenting this as a finding in a letter inviting comment and in circumstances where the subject information went to the question of relocation, the Tribunal had already made up its mind about the issue of relocation without considering the applicant’s objections to it. This is so given that at the hearing the applicant had not had the opportunity of completing his objections to relocation.
What must be noted is that the letter was not signed by the relevant Tribunal member but by a Tribunal officer. However, given that the conduct of the review had well and truly commenced by that time a reasonable inference to be drawn is that the letter was sent at the direction, or even at least with the knowledge, of the Tribunal member constituted to conduct the review.
This is strengthened by the reference in the letter to the Tribunal deciding on writing to the applicant rather than conducting a further hearing. A direct reference to what the Tribunal had told the applicant at the conclusion of the hearing.
In any event I am ultimately persuaded by Ms Dinihan’s submissions that what the Tribunal was doing, albeit with some infelicitous use of language, was conveying to the applicant a context within which the country information relevant to relocation was to be understood.
A context set by the applicant himself in his initial statement and at the hearing. His claims were that once he left the army he had no one to assist him against the “terrorists”. In any event the applicant in his letter of reply readily agreed that he was a “low profile person” and that, for this reason, the authorities would not protect him if he were to relocate (CB 86.3).
On a fair reading the Tribunal was seeking to convey to the applicant that the relevant country information distinguished between persons of low and high profile and that the country information it was putting to him should be seen in the context of how it applied to a low profile person. No error is revealed in these circumstances.

Conclusions

For the applicant to succeed the Court would at least need to discern jurisdictional error in the Tribunal’s decision. No such error is revealed. Therefore the application is dismissed.

I certify that the preceding one hundred and thirty-seven (137) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:

Date: 12 July 2010