SZOBH v Minister for Immigration - [2010] FMCA 203

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOBH v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 203

MIGRATION – Review of decision of Refugee Review Tribunal – information fell within exceptions contained in s.424A – inconsistencies in applicant’s written and oral evidence not “information” – Tribunal complied with s.424AA – Tribunal not required to consider claims not made or not arising from circumstances – Tribunal complied with s.425 – Tribunal not required to consider state protection in circumstances – findings open to Tribunal on material before it – Tribunal understood and applied the law – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36, 65, 422B, 424A, 424AA, 425

Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294
Minister for Immigration & Citizenship vSZHXF [2008] FCAFC 36
SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46
SZMMP v Minister for Immigration & Citizenship [2009] FCA 233
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
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
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1
SZLPI v Minister for Immigration and Citizenship [2008] FCA 1841
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration & Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62
SZFDE v Minister for Immigration & Citizenship (2007) 237 ALR; [2007] HCA 35
Minister for Immigration & Citizenship v SZMOK [2009] FCAFC 83
Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379
Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559
VAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 59
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407

Applicant:

SZOBH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3022 of 2009

Judgment of:

Nicholls FM

Hearing date:

23 March 2010

Date of Last Submission:

23 March 2010

Delivered at:

Sydney

Delivered on:

25 March 2010

REPRESENTATION

Appearing for the Applicant:

In person

Solicitors for the Applicant:

Appearing for the Respondents:

Ms R White

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application made on 11 December 2009, and amended on 18 February 2010, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3022 of 2009

SZOBH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made on 11 December 2009, and amended on 18 February 2010, under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 17 November 2009, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

The applicant is a national of India who arrived in Australia on 9 April 2009. He applied for a protection visa on 14 April 2009. (See Court Book – “CB”, CB 1 to CB 26, and CB 31 to CB 32.)

Applicant’s Claims to Protection

The applicant claimed to be a Muslim who was a member of the Indian Union Muslim League (“IUML”), who feared harm from opposition political parties, Rashtriya Swayamsevak Sangh (“RSS”) and Bharatiya Janata Party (“BJP”).
The applicant claimed to have been politically active on behalf of the IUML. In 1998 he became an Area Secretary of the party in Kottakkal, in Kerala State. He claimed to have come into conflict with opposition parties and that false cases were filed against him. He was attacked and beaten many times. Attempts were made on his life. When he reported this to the police, he received threats that false cases of terrorism would be made against him.
Following a successful campaign against his opponents in July 2006, his business was attacked with the help of local police. He was told by other police that they would take no action because there were no eyewitnesses. Complaints to higher police authorities resulted in him being interrogated and tortured, and the lodgement of false terrorism charges against him. He fled India as a result.

The Delegate

The applicant was interviewed by the delegate on 5 June 2009 (CB 29). The delegate accepted that the applicant may have suffered as he had claimed in his local area because of the conflict between the Muslim community and other groups. However, given the finding that the threats to the applicant were local, the delegate subsequently found that the applicant could safely relocate to another part of Kerala, or another state in India with a large Muslim population (CB 43 to CB 45).

The Tribunal

The applicant applied for review by the Tribunal on 3 August 2009 (CB 47 to CB 50). The applicant was invited to, and attended, a hearing before the Tribunal on 28 September 2009 (CB 52 to CB 55). The Tribunal’s account of what occurred at the hearing is set out in its decision record ([33] at CB 102 to [69] at CB 111). There is no other evidence before the Court (for example, a transcript) as to what occurred.
From the Tribunal’s account of what occurred at the hearing, the Tribunal put to the applicant its difficulties and concerns about his evidence and, in particular, whether inconsistencies in his evidence would lead it to come to the conclusion that he was not telling the truth in relation to his claims to fear persecutory harm. (See [59] at CB 108 to [68] at CB 111.) The applicant was given further time to provide documents which he said would “convince” the Tribunal that what he had said was genuine. (See [69] at CB 111 and CB 70.)
The applicant subsequently provided a number of documents to the Tribunal. (See [69] at CB 111 and CB 71 to CB 94.)
The Tribunal found that there were good reasons to doubt that the applicant was telling the truth about his involvement with IUML. The Tribunal found him to be an unsatisfactory witness. The Tribunal gave reasons for this. Essentially, it found the applicant’s evidence and claims over the course of the processing of his application to be inconsistent and vague ([73] at CB 112 to [80] at CB 114).
Further, the Tribunal found that the applicant’s failure to answer truthfully, both at the interview with the delegate, and at the hearing with the Tribunal, as to whether he had travelled out of India before coming to Australia, and his explanation for this, went to his credibility ([81] at CB 114).
The applicant’s credibility was found to be further weakened by his inability to name a particular opposition candidate in circumstances where he had given evidence that he had been in charge of his party’s campaign in a particular election in 2006 ([82] at CB 114 to CB 115).
The Tribunal also found that the applicant’s claims did not accord with independent country information available to it as to the political situation in Kerala, and particularly in his area ([84] to [86] at CB 115).
After the hearing with the Tribunal the applicant submitted a number of documents in support of his claims (CB 66 to CB 69, CB 71 to CB 94):
1)A letter from the IUML.
2)A medical certificate.
3)Press reports and statistical information.
The Tribunal decided that it would afford no weight to these documentary materials.
The letter was purportedly signed by the Secretary of the applicant’s local branch of the IUML (CB 74). In his initial claims the applicant claimed to have been appointed Area Secretary of the IUML in 1998. At the hearing with the Tribunal he gave what was described as “vague” evidence that he had been Secretary for some eight years, which would have made his year of appointment 2001. The letter stated that he had been appointed “since 1998”. (See [74] at CB 112.)
The medical certificate, reproduced at CB 71, asserts that the applicant was admitted to hospital in Kerala on 12 January 2005 and 6 June 2005 for treatment for a wound on his jaw and a fracture to his left foot. The Tribunal noted that what was asserted in the letter was inconsistent in part with the applicant’s own evidence ([76] at CB 113). It ultimately accepted that the applicant had suffered the injuries as indicated in the certificate, but did not accept his evidence that this was as a result of his claimed involvement with the IUML ([89] at CB 116).
The translations of press reports and statistical information (CB 72 to CB 94) were submitted by the applicant to generally support his claims. The Tribunal found, as with the other two documents, that they did not outweigh the problems that it had with his evidence ([87] at CB 116).
It is important to note that the Tribunal did not reject the applicant’s documentary evidence as being forgeries or fraudulent. To the contrary, in the case of the medical certificate it accepted what was on the face of the document, namely, that the applicant had sought treatment for his jaw and left leg.
The Tribunal comprehensively rejected the applicant’s factual account as to what he said had occurred in India. It did so for reasons which were open to it. The Tribunal’s conclusion was that the applicant was not to be believed. I agree with the Minister that this is a case which comes within what was said in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [49]. That is, the Tribunal treated the applicant’s documentary evidence which had been “proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption.”
In all, the Tribunal rejected the applicant’s factual account to have been involved with the IUML and to have suffered harm as a result. It found that the applicant did not have a well founded fear of persecution if he were to return to India, and therefore affirmed the decision under review.

Application to the Court

By way of amended application, the applicant put forward the following grounds:
“1. My point is that despite having attended in the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order for fully compliance of s424A as decided by the majority judge of the High Court in SAAP.
2. The Tribunal failed to consider an integer of Applicant’s claims, in failing to consider whether or not a liberal Muslim [in] India was at risk of harm from radical Hindus, and not able to access effective protection.
3. The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.
Therefore, I submit that the Tribunal failed to analyse properly the ‘future harm’ that I may face if I have to go back to India.
Hence, due to this failure, the Tribunal had committed a serious jurisdictional error by failing to assess or carry out the ‘real chance’ test, before dismissing my claims.”

Hearing before the Court

At the hearing before the Court the applicant appeared in person. He was assisted by an interpreter in the Malayalam language. Mr R White appeared for the Minister.
The applicant confirmed that he wished to pursue the grounds set out in the amended application. Unfortunately, he was unable to add anything of substance, or even explanation, to the grounds. He explained that these had been drafted with the assistance of a “friend”.
It must be said that the three grounds put forward by the amended application are identical to grounds often put before the Court in recent times by applicants from the Indian state of Kerala, most recently as late as three days ago before me.
In any event, for current purposes, the applicant submitted in relation to each of the stated grounds:
1)Ground One:
a)   That he did not receive fair treatment at the hearing with the Tribunal. He submitted that he did not “understand” the content of what was put to him.
b)     The Tribunal asked him to give evidence about police involvement, but that he had not registered with the police.
2)Ground Two:
a)   The Tribunal did not accept that he had received hospital treatment.
b)     The applicant was unable to assist with the reference to “liberal Muslim”.
3)Ground Three: The applicant had nothing to say.
4)Other complaints: The applicant stated that he would “definitely face problems” if he were to return to India. The Tribunal was in error in saying that he could live elsewhere in India.

Consideration

Ground One

The first ground asserts a breach of s.424A and relies on the majority judgment in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294. On its face, it is not exactly clear what “information” the Tribunal should have put to the applicant in writing pursuant to s.424A. The Minister submits that this should be understood as an assertion that the Tribunal was obliged to put its adverse conclusions following the hearing to him in writing for comment.
Ground three in the originating application is in identical terms to this ground. The words at the beginning of this ground (“My point is …”) would also suggest that the ground should be understood in context of what is set out in grounds one and two of the originating application. Namely, that the Tribunal reached adverse conclusions following the hearing, and that these should have been put to the applicant in writing for comment pursuant to s.424A.
The answer to this complaint is that “information” for the purposes of s.424A does not include the Tribunal’s doubts about the applicant’s evidence and claims, nor its findings as to inconsistencies in what was put before it (SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 at [18]).
Further, the evidence and material that the applicant gave the Tribunal for the purpose of the review falls within the exception to the obligation in s.424A(1) set out in s.424A(3)(b). The written information which the applicant gave to the Minister’s department falls within the exception contained in s.424A(3)(ba).
To the extent that the Tribunal relied on independent country information of a non in personam nature (“… not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member …”), then such information falls within the exception set out in s.424A(3)(a).
To the extent that the Tribunal relied on information as to the identity of the unsuccessful candidate in elections, for whose party the applicant said he had worked, such information could be said to be about the outcome of the election and not information about a person. (See Minister for Immigration & Citizenship vSZHXF [2008] FCAFC 36.) As such, this is information caught by the exception in s.424A(3)(a).
The respondent submitted that there was no “information” caught by s.424A(1) in this regard because what the Tribunal pointed out to the applicant at the hearing were “inconsistencies”. As such this was not information for the purposes of s.424A. (See SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 - “SZBYR”, at [18].)
To the extent that the Tribunal referred to the inconsistency as to the name of the unsuccessful candidate in his written statement to the Minister’s department as a “Mr Narendran”, but as a “Mr Surendran” at the hearing before the Tribunal, I agree that such an inconsistency in the applicant’s claims and evidence is not, on the authority of SZBYR, “information” for the purposes of s.424A.
However, the Tribunal’s subsequent reference to the Indian Electoral Commission’s report that the unsuccessful candidate was, in fact, a “Mr Ummer”, was not an inconsistency contained in the applicant’s evidence such as to be caught by what was said in SZBYR at [18].
But in any event, this material, and a large body of other information, was put to the applicant at the Tribunal hearing, with the indication that he could have additional time to comment on the information. (See [59] at CB 108 and [63] at CB 109.)
On what is before the Court in this regard, the Tribunal complied with the requirements set out in s.424AA. In those circumstances, because of s.424A(2A), the Tribunal was not obliged to give this information to the applicant pursuant to s.424A(1). (See SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46 at [90], SZMMP v Minister for Immigration & Citizenship [2009] FCA 233 at [51].)
This is also the case with information that the applicant gave orally to the delegate ([64] at CB 109). Such information would not fall within the exceptions set out in s.424A(3). But in the circumstances, it is caught by s.424A(2A).
The applicant’s submissions were not directed to the grounds as pleaded. The applicant’s complaint that he was not treated fairly at the Tribunal hearing, and that he did not understand some of what was put to him, is unsupported by any evidence.
The only evidence before the Court of what occurred at the Tribunal hearing, relevantly, the Tribunal’s own decision record and relevant documents in the Court Book, reveal that the Tribunal conducted a lengthy hearing (CB 54 – about two hours and 45 minutes). It was a comprehensive hearing, in which the Tribunal squarely raised its difficulties with the applicant’s evidence.
The determinative issues, which disposed of the review, were ventilated (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 – “SZBEL”). Before the Court, the applicant did not point to any part of the hearing where he did not understand the import of what was put to him. Nor is this apparent from the Tribunal’s decision record.
There is no claim now by the applicant that there were any difficulties with the level of interpretation provided by the interpreter.
It was unclear as to what “police matter” the applicant was referring to before the Court. His complaint appeared to be that the Tribunal asked him to provide evidence of this, but that “he had not registered it”.
Whatever the complaint now, the Tribunal raised two matters involving the police with the applicant at the hearing.
First, the applicant’s initial claim and subsequent evidence to the Tribunal involved a claim that the police were involved in an attack on him and subsequently took him to the police station. The Tribunal indicated to the applicant that it was having difficulty in understanding exactly what he was claiming ([48] at 106). Given the Tribunal’s unchallenged account of what relevantly occurred at the hearing, the Tribunal’s difficulty is understandable, given what the applicant is reported to have said. (See [47] at CB 106 to [51] at CB 107.)
There is nothing in this account to suggest that there was any issue involving “registration” with the police. What is revealed is that the applicant’s evidence and answers certainly provided a probative basis for the Tribunal to question the truth of the applicant’s account.

Second, in his initial written statement the applicant claimed that false cases or petitions were filed, or registered, against him (CB 31 to CB 32). In his evidence to the Tribunal the applicant said that he had not been charged with any offence in India. When the Tribunal referred him to his statement he gave evidence that the opposing political parties had made complaints to the police, but stated that these types of complaints are generally settled “at the police level”. They were not “conducted” as court cases ([58] at CB 108).
It appears that the applicant’s complaint now is to again assert that no false cases were “registered with the police”. This accords with what the Tribunal recorded of his evidence. I cannot see that the Tribunal asked him to provide any evidence of any registration. This complaint does not assist the applicant.
In all, therefore, ground one is not made out.

Ground Two

Ground two asserts that the Tribunal failed to consider an integer of the applicant’s claims. That is, whether or not a “liberal Muslim” in India was at risk of harm from radical Hindus, and would not be able to access effective protection.
Unfortunately, this ground highlights the dangers of unrepresented applicants relying on grounds that have been “borrowed” from other cases, or drafted by “friends”.
A failure to deal with an integer of an applicant’s claims is jurisdictional error. The difficulty for the applicant, however, is that no such claim was raised before the Tribunal. No such claim was made either expressly, nor can one be said to arise from the circumstances presented. The Tribunal is not required to consider a claim not made, nor one which cannot be said to clearly arise on the material before the Tribunal (Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; 90 FCR 287, see also ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184, NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1).
Further, as the Minister submits, the Tribunal specifically focussed on the matter of the applicant’s religion. It found that the applicant had not made any claim to face persecution for reason of his Muslim religion as distinct from his claimed involvement in the IUML. But in any event, it found that as a Muslim the applicant would not face persecution for reason of his Muslim religion if he were to return to Kerala ([90] at CB 116 to CB 117).
Further, in circumstances where the Tribunal, for cogent reasons, and based on findings open to it, finds that there was not a real chance that the applicant would be persecuted, either for reason of his political opinion or religion, there is no need for it to consider whether effective state protection would be available to the applicant. (See, for example, SZLPI v Minister for Immigration and Citizenship [2008] FCA 1841 at [26].) Ground two is also not made out.
The applicant’s complaint before the Court that the Tribunal did not accept that he received medical treatment for injuries in India must be rejected. The Tribunal plainly accepted that he had received treatment for injuries to his jaw and his leg as set out in the medical certificate which he provided (see [69]). While the Tribunal found inconsistencies between what was stated in the certificate and the applicant’s own evidence ([76]-[77] at CB 113), the Tribunal ultimately accepted that the applicant suffered a wound to his jaw in January 2005 and a fracture to his left foot in June 2005, but did not accept that these injuries were suffered as a result of his claimed involvement with the IUML. (See [89] at CB 116.)
This finding was reasonably open to the Tribunal on what was before it. The Tribunal gave reasons arising from the applicant’s own evidence. No error is revealed.

Ground Three

Ground three asserts that the Tribunal’s “reasonable satisfaction” was not arrived at in accordance with the provisions of the Act. The application provides no particulars whatsoever. Nor was the applicant able to assist before the Court.
The relevant statutory scheme (ss.65 and 36(2) of the Act) requires that the Tribunal reaches 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 UN Refugees Convention. In such circumstances, a protection visa must be granted (SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [15] to [16], NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 at [4] to [5], Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).
I agree with the Minister that on what is before the Court the Tribunal properly referred to the relevant law in its decision record. (See, generally, [3] at CB 97 to [12] at CB 99.) The material before the Court reveals that the Tribunal properly applied the statutory scheme in reaching its decision.
In particular, the Tribunal complied with the relevant statutory procedural code which is set out in Division 4 of Part 7 of the Act as the exhaustive statement of the natural justice hearing rule, absent bias (s.422B - see Minister for Immigration & Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59] to [67], SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration & Citizenship (2007) 237 ALR; [2007] HCA 35 at [48], Minister for Immigration & Citizenship v SZMOK [2009] FCAFC 83, in particular at [8] to [18]).
In addition to what is set out above in relation to s.424A and s.424AA, I note that the applicant was invited to a hearing pursuant to s.425. On what is before the Court, this was a meaningful opportunity for the applicant to give his evidence. He was exposed to the issues determinative of the review (SZBEL). The Tribunal made findings which were reasonably open to it on what was before it. It gave cogent reasons for its critical finding that the applicant was not a witness of truth. I cannot see error in what the Tribunal has done in this regard.

Other Complaint

As a concluding comment to the three stated grounds, the amended application asserts that the Tribunal failed to properly analyse the “future harm” that the applicant may face if he were to go back to India, and that this constituted jurisdictional error by failing to address the “real chance” test.
In conducting the review, the Tribunal was required to consider whether the applicant satisfied the relevant criteria for a protection visa. In effect, and relevantly, this required it to assess the risk of future harm to the applicant on return to India. However, the Tribunal did assess this risk when it turned its mind to the question of whether the applicant was at risk of being harmed in India in the “reasonably foreseeable future”. (See [12], [68], [90].)
In relation to the alleged failure to apply the “real chance” test specifically, I cannot see that the Tribunal did not discharge its duties properly in this regard. A plain reading of its decision record reveals that it understood that the question of whether a person is owed protection obligations by Australia is to be answered by having regard to what will happen in the reasonably foreseeable future if the applicant were to return to the country of claimed persecution. Also, it understood the test that it was required to apply in terms of assessing whether the applicant’s fear was “well-founded”. A plain reading of its decision record does not reveal any failure to correctly identify, and properly apply, relevant legal principles.
In Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 per Mason CJ at 387 and 391, per Dawson J at 399, the High Court observed that, ordinarily, the starting point for ascertaining the present or future status of an applicant would be the circumstances in which an applicant fled his or her home country.
The issue as to whether, and to what extent, past events can be a guide to the likelihood of future harm was discussed by the High Court in Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559. At 574 the Court said:
“… Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence …”
Further, in the current case there was no substantial change in the protection available in India, or change in relevant conditions such that the past could be said to be a less reliable indicator of the future (See, for example, VAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 59 at [16].)
The material before the Court reveals that the Tribunal gave careful consideration to the applicant’s claims of past harm. What the applicant clearly has difficulty in understanding, or accepting, is that the Tribunal rejected his factual account of what he said had occurred in India in the past because it found him not to be a witness of truth. The Tribunal’s role is to make findings of fact upon which to base its ultimate conclusion as to future harm. Such findings may include findings as to claims as to what occurred in the past, and findings as to credibility (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). In the current case it was open to the Tribunal, on what was before it, to find that the applicant was not to be believed. It gave reasons for this.
In the absence of any other relevant factor, it was open to the Tribunal to find that there was not a “real chance” that the applicant would suffer persecutory harm in the future if he were to return to India, given the comprehensive rejection of his claims to have suffered such harm in the past. No error is revealed in this regard.
The applicant’s complaint that the Tribunal found that he could relocate within India in circumstances where he could not safely do so does not assist. The Tribunal made no such finding. It may be that the applicant has confused this with the finding made by the delegate. (See [6] above.)
In all, the applicant was given the opportunity to give his evidence at a hearing, and to explain his claim to fear persecution if he were to return to India. Simply, for the cogent reasons which it gave, the Tribunal did not believe him. Any challenge to the Tribunal’s finding as to the applicant’s credibility cannot succeed as, in the circumstances, it does not rise above a request for merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259).

Conclusion

For the applicant to succeed before the Court, the Court would, at least, need to discern jurisdictional error in the Tribunal’s decision. I cannot see such error. The application, as amended, is dismissed.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: C Darcy

Date: 25 March 2010