SZOCA v Minister for Immigration
[2010] FMCA 520
•21 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOCA v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 520 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. The Applicant in these proceedings has not been identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZOCA”. |
| Migration Act 1958 (Cth), ss.65, 91X, 422B, 425 |
| Abebe v Commonwealth (1999) 197 CLR 510 Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32 NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253 SZAIX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 3 SZATV v Minister for Immigration & Citizenship & Anor [2007] HCA 40 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 SZBJI v Minister for Immigration & Multicultural Affairs [2006] FCA 216 SZFDV v Minister for Immigration & Citizenship & Anor [2007] HCA 41 WALT v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCAFC 2 |
| Applicant: | SZOCA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 9 of 2010 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 16 April 2010 |
| Delivered at: | Sydney |
| Delivered on: | 21 July 2010 |
REPRESENTATION
| the Applicant: | The Applicant appeared in person with the assistance of a Punjabi interpreter |
| Counsel for the Respondents: | Angela Nanson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 4 January 2010 is dismissed.
The Applicant is to pay the first Respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 9 of 2010
| SZOCA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
The Applicant in this matter is a citizen of India. His religion is Sikhism and is from the State of Jammu and Kashmir, near the border of Pakistan. He speaks, reads and writes Punjabi and Hindi and is literate in English.
The Applicant attended 12 years of school in a government high school in Simbal Camp. The Applicant gives no details of past employment and is presently unmarried.
The Applicant travelled to Australia on an Indian passport issued in Jammu on 4 October 2001. He arrived in Australia on 7 June 2009 on a Subclass 676 (Tourist) visa. On 20 July 2009 the Applicant lodged a Protection (Class XA) visa application with the Department of Immigration and Citizenship.
In his application for refugee status, the Applicant claims the following:
a)He is a ‘permanent resident’ of Ward No.1, Simble Camp, Jammu District. The Applicant’s home is located 4 kilometres from the line of control/international border.
b)The Applicant states that the State of Jammu and Kashmir is ‘a totally disturbed state with insurgency all over it’. He claims that his home has been subjected to militant attacks.
c)The Applicant was harassed by the Khalistan Zindabad Force with the group’s head being Ranjeet Singh Neeta who is a terrorist on the Indian Government’s most wanted list. He claims that the terrorists threatened to kill the Applicant and his parents as he refused to join their group. He left India on 25 August 2005 for Singapore.
d)The Applicant returned to India on 9 November 2005 when he believed the situation in Jammu had returned to normal.
e)On 23 May 2006 the Applicant’s father was killed. The Applicant states that terrorists killed his father. At this time the Applicant left his home and went to live with relatives.
f)The Applicant obtained a ROK (Korean) visa on 16 December 2007 and remained in Korea until 25 August 2008 when he “hesitatingly” returned to India after learning from relatives that the situation had returned to normal.
g)The Applicant claims he is in a state of shock and trauma. He claims he cannot return to India in the current circumstances. He applied for an Australian visa on 14 May 2009 and left Jammu and Kashmir on 6 July 2009.
h)The Applicant seeks a Protection (Class XA) visa based on his past experiences and to avoid future harm. He claims he also wants to avoid the stigma of being associated with “antinationalistic elements”.
The Delegate of the Minister decided to refuse to grant the Applicant a visa on 2 September 2009 and notified the Applicant of the decision and his rights of review by letter dated the same day. The delegate did not interview the Applicant. The Delegate, in refusing the application, found that the Applicant’s fear of harm arose from the general security conditions from the conflict in Jammu and Kashmir and not related to any Convention related ground.
The Applicant applied to the Tribunal on 5 October 2009 for review of the delegate’s decision. He subsequently attended a hearing at the Tribunal on 17 November 2009.
On 30 November 2009 the Tribunal affirmed the decision of the Delegate of the Minister for Immigration and Citizenship not to grant the Applicant a Protection (Class XA) visa. It is this decision, RRT Case Number 0908012, the decision of James Silva that is the subject of the proceedings before this Court.
A Court Book (“CB”) was prepared by the first Respondent’s solicitors and marked Exhibit “A”. This is the only evidence before the Court.
At the first court date directions hearing the Applicant indicated that he wished to participate in the NSW RRT Legal Advice Scheme and was referred to a panel member who provided him with defence during a conference followed by written advice. The Applicant was granted leave to file an amended application.
On 26 March 2010 the Applicant filed an Amended Application containing the following grounds:
1. The Applicants submit that the Tribunal erred in making findings of a well founded fear. The RRT Erred in adopting an unduly harsh approach to this well-founded fear. The Stringent application of the test may also result in an error in assessment of the finding in relation to the well-founded fear.
Particulars: In the finding of reasons, at column 63 (Green Book page 99) at one place accepts tha[t] “ a fair reading of the Applicants claims taken together with his oral evidence, shows that he also fears harm because the KZF may persist in their efforts to recruit him or target him for having resisted them in the past. Related this, he claims that the Indian Security forces may inturn suspect him of being a KZF sympathiser, and deny protection for that reason. The Tribunal is satisfied that taken to face value, the feared harm is for reason of at least the Convention grounds of imputed political opinion – that is KZF may infer that the Applicant is opposed to their political ideals and goals in refusing to join them, and the Indian authorities may suspect him being affiliated with KZF”
However, the Tribunal does not accepts that the Applicant has fear of harm if he returns to India that because the overall security and political environment in his home area, do not relate to the Convention related prosecution within the meaning of the ACT.
The Applicant claims that the Tribunal made a jurisdictional error when it made decision on assumption and probability. The Tribunal’s finding of reasons is confused and test for persecution was not applied according to the rule of the Act.
The Applicant claims that the Tribunal formed the above opinion based on the limited information about the possible harm to the Applicant. The Tribunal ignored all other independent information and calm on the conclusion that the Applicant and persons like him have no fear of persecution and harm.
The Applicant claims that the Tribunal did not consider that the definition of refugee required that consideration be given to the cumulative effect of various fears of persecution held by the Applicant for refugee status.
2. The Applicants submit that the Tribunal has misconstrued the test; has failed to carry out the “real chance” test as required by the law.
Particulars: The Applicant claims the Tribunal did not give consideration to each separate aspect of claim of fear of persecution made by the Applicant for refugee status. The Tribunal did not believe in the Applicant’s oral evidence that he cannot escape from the KZF because it has an India wide network. KZF can harm any place in India. The Tribunal did not believe in the oral evidence of the Applicant and formed the opinion that he “exaggerated his vulnerability at the hearing. In its view the Applicant’s evidence about his employment, travel history and personal circumstances was less than forthcoming”.
3. The Tribunal erred in failing to properly consider the issue of relocation (in circumstances where relocation was an important consideration)
Particulars: The Applicant submits that other than considering the ability to speak the language the Tribunal erred in not considering the reasonableness and practicality of relocation. The Tribunal making other errors such as putting irrelevant and outdated country information to test the Applicant’s skills and employability. The Tribunal did not understand the difficulties of relocating in the other parts of India and very easily made conclusion that the Applicant can relocate in the other parts of India to avoid the problems from the opposite parties. The Tribunal used Applicant’s references and circumstances to (Green Book page 103 col75) establish that the Applicant has reasonable grounds to relocate in the other parts of India if he is apprehensive about returning to Simbal.
4. Tribunal made the decision on the basis of the unreliable information. The Tribunal should made an investigation before making the decision, though the Tribunal has power the Tribunal did not make it, which amounts to a denial of procedural fairness.
5. The Applicant was denied procedural fairness when the hearing was not conducted in accordance with the Act.
Particulars: The Tribunal accepts that the Applicant appeared somewhat nervous and uncertain at hearing, and the Tribunal has taken this into account in assessing application some confidence about situation and personalities in Simbal area, his evidence on other matters was sometimes vague and obscure and occasions evasive (Green Book – pages 100 – 101 col64).
The Applicant claims that he was pressurised to continue the hearing despite the fact that the Applicant was totally nervous and could not understand what that interpreter is talking about. The Applicant claims that he was not interviewed in judicial manner and denied fair hearing.
The Tribunal decision
The Applicant attended a hearing before the Tribunal on 17 November 2009. The Applicant’s claims did not vary from those put to the Delegate. The Tribunal summarised his claims as follows:
The Applicant claims to fear persecution in India due to the KZF’s unsuccessful efforts to recruit him, and their consequent resolve to kill him as they killed his father in May 2006. He also claims, more tentatively, that the Indian authorities are unable to protect him from such harm and, moreover, that they might even suspect him of being associated with the KZF. The backdrop to the Applicant’s claims is the overall security situation in Jammu and Kashmir, and specifically the presence of militant groups in Simbal. (CB 99 at [61])
The Tribunal accepted that the Applicant was a Sikh, in contrast to the delegate and considered that the Applicant feared harm because the KZF might persist in their efforts to recruit him or target him for his existence. In addition, the Tribunal considered that the Applicant feared harm for reason of, at least, the convention ground of imputed political opinion – namely that the KZF might infer that he was opposed to their political ideals and goals in refusing to join them, and that the Indian authorities might suspect him of being affiliated with the KZF (CB 99 at [63]).
The Tribunal did not accept that the KZF or any military or terrorist organisation killed the Applicant’s father or threatened harm against the Applicant or his family for the following reasons:
a)While the Tribunal relied on country information and accepted that the Applicant may have had contact with the KZF, it considered this to be minimal. The KZF had no adverse interest in the Applicant either as a potential recruit or on the basis of his past refusal to join.
b)It took into account the return of the Applicant to India on two occasions, particularly to Simbal itself. The Tribunal found that this did not support the genuineness of the Applicant’s fear.
c)The Applicant’s account of the death of his father was confused and uncertain. This led the Tribunal to conclude that his death was from causes unrelated to the Applicant’s refugee claims.
d)The Applicant gave a confused picture of his employment, income and particulars of his alleged hiding in India. This, together with a lack of action against the Applicant on the part of the KZF, led the Tribunal to conclude the Applicant had no contact with the militants or that they were not threatening him.
e)The Applicant inadequately explained the delay of three weeks between the Applicant’s receipt of a visa and his leaving India.
(CB 100-101 at [67])
The Tribunal made the following findings at [71] of its decision:
[71] In sum, the Tribunal finds that the Applicant had not experienced persecution at the hands of the KZF, Indian security agencies or anyone else. Instead, he finds that he departed India for unrelated reasons and that he has fabricated his claims of past harm. It rejects his claims to have been the target of the KZF for recent recruitment or for quasi political reasons after he refused their past advances: that he sought protection from relatives living elsewhere in Jammu (but was turned away because of their fears); that the KZF killed his father in 2006 as a warning to the Applicant: that he and his mother were afraid to approach the media and/or police (the Tribunal finds that they had no need to); that the Applicant fled India in 2005, 2007 and again in 2009, for fear of such harm; or that the Applicant experienced any related harm. It also does not accept that the Indian authorities have had any past interest in him, or that there are any factors that lead them to currently suspect that he supports the KZF or any other prescribed organisation. (CB 102)
The Tribunal also considered the possibility of “prospective harm” should the Applicant return to Simbal and the surrounding areas and concluded that there remained a “…very small, but nevertheless real, chance…” that the Applicant might be subject to convention related persecution (CB 103 at [73). Taking into account the relavent independent country information relating to the activities of the KZF and also the Applicant’s own circumstances the Tribunal concluded it would be reasonable for him to relocate to another part of India (CB 103 at [74]-[75]).
Consideration
There are a number of decisions that have considered the practical realities that would face an Applicant if he or she was required to relocate: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, SZATV v Minister for Immigration & Citizenship & Anor [2007] HCA 40, SZFDV v Minister for Immigration & Citizenship & Anor [2007] HCA 41, NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37 at [22] per Branson J and [73] per North J, WALT vMinister for Immigration & Multicultural & Indigenous Affairs [2007] FCAFC 2 at [45], SZAIX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 3 and SZBJI v Minister for Immigration & Multicultural Affairs [2006] FCA 216. These decisions state that the matter of relocation entails the Tribunal considering the Applicant’s personal history, including his language skills, age, education, health, family connections, employment and demonstrated an ability to live independently elsewhere than in the locality of origin (WALT (supra) at [45]).
In SZATV v Minister (supra) their Honours Gummow, Hayne, and Crennan JJ at [24] stated that in considerting relocation:
What is” reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the Applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.
This test was not directed to living conditions generally but rather to the circumstances of the individual and matters such as differential treatment in the matters of race, religion or political opinion (SZAVT at [26]).
Paragraphs [58] and [59] of the Tribunal decision under the sub-heading “Relocation within India: Sikhs” the Tribunal stated:
[58] The Tribunal discussed with the Applicant whether it would be safe and reasonable for him to relocate in India, if it were to find that he has a well founded fear of persecution in Simbal. It pointed among other things to India’s large population, the presence of Sikhs in many parts of the country, and the absence of any legal or other restrictions to his involvement with India.
[59] The Tribunal drew on the most recent UK Home Office Country of Origin Information Report, India, 12 May 2009.
(CB 97)
In its “Findings and Reasons” at paragraph [75] the Tribunal states:
[75] The Tribunal finds, having regard to the Applicant’s circumstances that it would be reasonable for him to relocate to another part of India. He is unmarried, relatively young, has completed high school, speaks Hindi as well as Punjabi, appears to have only one relative, his mother, living directly in Simbal. His past travel suggest that he is resourceful and mobile. Sikhs enjoy extensive people rights in India, and the Tribunal is satisfied that the reported incidents of discrimination [para 58] are not persecutory, as they do not involve serious harm or systematic conduct (s.91R(1)(b) and (c) of the Act). They also do not make it unreasonable for the Applicant to live elsewhere. Moreover, the Tribunal formed the impression – based on the Applicant’s references to relatives in other parts of Jamu to have found work on trucks going between Jamu and other cities, and engaging an agent to arrange his travel – that he has connections and people who can assist him apart from his mother. All these factors lead the Tribunal to find that the Applicant can safely and reasonably live elsewhere in India if he is apprehensive about returning to Simbal (CB 103).
In WALT (supra) their Honours Mansfield, Jacobson and Siopis JJ confirmed at [45] that the Tribunal was required to address the practical realities facing an Applicant if he were to relocate, consistent with the approach taken by Black CJ in Randhawa (supra). In the particular circumstances of that case, the Court was satisfied that the Tribunal did properly address those practical realities. In that context, the Tribunal had regard to the fact that the Applicant’s country information was predominantly Christian and that state protection against family incited violence and other non state actors was available. It also had regard to the Applicant’s personal history, including his language skills, age and employment whilst in another country, the schools he thereby acquired and his demonstrated ability to live independently in another country. It was in those circumstances, that their Honours found that the Tribunal’s view that the Applicant’s employment and language skills were transportable and likely to be used in his home country, was reasonably available to it. Again this case illustrates the relevance of the Applicant’s personal circumstances and the reasonablness of relocation.
In the matter before this Court, the Tribunal, with the assistance of the independent country information referred to at [59] considered whether a Sikh can move and relocate themselves in any part of India that does not come under excluded or restricted zones like some parts in Northern India. The Applicant speaks Punjabi and English and notes that Punjabi which is the Sikh language closely resembles Hindi and is widely understood to large parts of Northern India. Employment is dependent on the individual’s skill levels and the Applicant indicated to the Tribunal that he had attended twelve years of school in a government high school. The only family tie that the Applicant has is that of his mother. However, he demonstrated on at least three occasions of his willingness to leave her and depart India in the pursuit in the alternate location to live. He has indicated that he has other relatives in other parts of India and that he has made contacts with these in the past to aid his mobility.
In determining whether the Tribunal has asked the right questions it is important to keep in mind the nature of the inquiry in issue. In SZBJI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 216, the Tribunal accepted that an Applicant from Nepal had Maoist political involvements and a low profile, would have place him at some risk in his home town in Kathmandu. The Tribunal addressed the possibility of a short term move outside Kathmandu. However, Allsop J found that the Tribunal did not raise with the Applicant or broach in its reasons the practicality and reasonablenss in all cicumstances of the Applicant relocating outside Kathmandu for the foreseeable future. His Honour found that the Tribunal failed to address an essential element of the question of avoidance of possible future persecution by relocation. While his Honour accepted that the Tribunal was not required to address relocation and elaborate on every aspect of its practical application, His Honour found that if, for the reason and the material before the Court it did not appear that the practical application of relocation had been addressed it would be wrong to assume that it had. His Honour found that, as part of the analysis of relocation, the issue of the Applicant’s Maoist adherence had to be addressed by the Tribunal and its failure to do so resulted in a failure to complete its jurisdictional task. The case illustrates the scope and nature of the obligation on the Tribunal to address the practicailities and reasonablenss in all circumstances of relocation for the foreseeable future.
Paragraph [74] of the Tribunal’s decision indicates that the independent country information was discussed with the Applicant noting that the operations of the KZF had limited operational capacity outside the Punjab, Jannu, Delhi, Nepal and Pakistan. Further there was no evidence presented by the Applicant to suggest that there had been any active approach by the KZF to recruit him in the past or had any adverse interest in him. Nor is there any suggestion that any of the Indian authorities regarded the Applicant as a person of interest. There is no material in the Tribunal’s decision or raised by the Applicant before this Court that raise any objection or practical reason why relocation was not a viable option. I am satisfied that the Tribunal has considered all of the relevant factors required to be addressed in the evaluation of a relocation decision and no jurisdictional error in its approach to this issue is apparent.
Ground one
This ground alleges that the Tribunal adopted a harsh approach in assessing the Applicant’s fear of persecution. Section 425 of the Act requires the Tribunal to invite an Applicant to appear before it and to give evidence and argue relating to the “issues arising in relation to the decision under review”. This provision is subject to s.422B of the Act which sets out the requirements of the “natural justice hearing rule” in relation to such matters. Ms Nanson I nher written submissions indicates that the Applicant was clearly notified of the issues arising following the delegate’s decision and, as the Tribunal’s reasons disclosed the Applicant was given every opportunity to expand on his claims at the hearing and response to the Tribunal’s questions: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63. The relevant facts pertaining to the application need to be supplied by the Applicant himself in as much detail as necessary to enable the Applicant to establish the facts. It is for the Applicant to make out his case: Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 per Kirby J at 596. In this case, the Applicant had an opportunity to attend the hearing and furnish additional facts. To the extent that he did the Applicant, he cannot now complain that any other facts were not taken into account or furnished additional facts and asked them to be taken into account. In the proceedings before this Court the Applicant has not provided any further details in relation to this claim such as the transcript of the hearing before the Tribunal. The Applicant has not given any details of how the Tribunal adopted an unduly harsh approach so the Court is forced to rely upon the evidence that has been presented which is the decision record reproduced in the Court Book. On a fair reading of the reasons given by the Tribunal the contrary position is established and it is not apparent that the Tribunal dealt with the Applicant in any way that could be described as harsh. A fair reading of the Tribunal’s decision discloses that it considered all of the Applicant’s claims, afforded the Applicant a hearing at which it obtained further details in relation to the Applicant’s claims and put to the Applicant its concerns about that evidence. In the circumstances this ground cannot be sustained and should be dismissed.
Ground two
This ground claims that the Tribunal made a jurisdictional error where it misapplied the express and implied meaning of the term “well founded fear” and “refugee from the UN Convention”. The Tribunal was obliged to consider whether the Applicant’s claims satisfied the Convention definition and the reasons disclosed it was aware of the criteria to be satisfied. In the decision record, paragraphs [5]-[17] the Tribunal sets out the applicable law (CB 88-90). The Tribunal then addressed the issue of whether or not it was satisfied as to the Applicant’s claims in respect of this criteria based on the evidence put before it. Further, the obligation placed on the Applicant to satisfy the Tribunal that the relevant criteria required for being a refugee are met: Abebe v Commonwealth (1999) 197 CLR 510 and 576. If the Tribunal is not satisfied, which is the situation in this matter, s.65(1) of the Act makes it clear that the Tribunal must confirm the decision under review. The Tribunal formed its opinion based on the limited information about the possible harm to the Applicant. The independent information relied upon by the Tribunal is set out in its decision (CB 95). The Tribunal clearly considered that information assessing both the situation at the Applicant’s home and also in relation to the Applicant moving in and out of the country. It is unclear what other information should have been before the Tribunal. In the circumstances this ground cannot be sustained and should be dismissed.
Ground three
This ground alleges that the Tribunal erred in failing to properly consider the issue of relocation. While the Tribunal concluded at paragraph [71] of the decision record (CB 102) that the Applicant had not experienced persecution at the hands of the various agencies, nevertheless, it went on to consider the Applicant’s situation should he return to India. That consideration commences at paragraph [73] (CB 103). At paragraph [74] the Tribunal sets down its discussion with the Applicant regarding the country information relating to the KZF and its operational capacity in various areas in India, Nepal and Pakistan. However, the Tribunal concluded that the information before it fell short of the Applicant’s suggestion that the KZF had an Indian – wide network. Further there was nothing to suggest that the KZF had the resources or motivation to pursue the Applicant throughout India. The evidence before the Tribunal did not suggest that the KZF had tried to recruit him in the past or indeed had any adverse interest in him, nor did that evidence suggest that any Indian authorites regarded the Applicant as a person of interest. Accordingly the Tribunal considered there were many other places in India to which the Applicant could safely go and live if he chose not to live in his home town or area in Simbal. The Tribunal then went on to consider whether it would be reasonable for him to relocate in India. The relevant authorities in respect of the consideration that the Tribunal should take into account when assessing the feasibility of relocation are set out in more detail above.
In determining the Applicant’s objections to relocation it considered whether he would be pursued by the KZF should he elect to pursue this option. The Tribunal found that that proposition was not supportable and sets out those reasons at paragraph [74]. The Tribunal then looked at the personal characteristics of the Applicant himself at paragraph [75]. The Tribunal noted that the Applicant was not married, had a good education, spoke Hindi as well as Punjabi, had only one close relative his mother and that his past travel suggested that he was resourceful and mobile. After fully exploring the totality of facts that were relevant to the Applicant the Tribunal made the finding that he could safely and reasonably live elsewhere in India if he was apprehensive about returning to Simbal. The Applicant has not indicated how the Tribunal erred in reaching these conclusions in relation to relocation. Further, the Tribunal has properly applied the appropriate tests in reaching its conclusion on the issue and this ground cannot be sustained and should be dismissed.
Ground four
In this ground the Applicant claims the Tribunal made its decision on the basis of unreliable information and that it should have made an investigation before reaching its decision. The Applicant has not stated in oral or written submissions or in particulars to the pleaded grounds what information was unreliable. The other aspect of this ground is that it is well established that the Tribunal is under no general duty to inquire: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32. On a fair reading of the Tribunal’s reasons there is no indication what further information should have been sought. In the circumstances, I am satisfied that this ground cannot be sustained and should be dismissed
Ground five
This ground claims that the Applicant was denied procedural fairness and that the hearing was not conducted in accordance with the Act. Again this ground is unsupported by any details or any evidence except to the extent that the Applicant has set out in his pleadings an extract from the Tribunal’s decision indicating that he appeared somewhat nervous and uncertain during the hearing. The Tribunal notes that it took into account these characteristics displayed by the Applicant when it was making its decision. This comment by the Tribunal speaks against the Tribunal acting in an unfair manner or as the Applicant claims to placing him under pressure. The Applicant has not provided a transcript. This is not absolutely essential, but it would be helpful if this material was before the Court in determining whether he was pressured to continue the hearing despite the fact that he was nervous and claims he did not understand what the interpreter was talking about. The transcript would have also indicated whether the Applicant made any request of the Tribunal to provide him with an opportunity for a recess or adjournment or whether he made any requests for further explanation of the questions being asked. The decision record, which is the only material before me and in the absence of written or oral submissions or more completely drawn particulars it would appear that the Tribunal took every care to make sure that the Applicant understood the concerns that it had in relation to the evidence that he had provided. In reply, the Applicant stated that the independent information used by the Tribunal was actually abstracted primarily from the internet or websites. However, being a citizen of India who lives in that country, the Applicant stated that he knew much more about what was happening inside that country than the Tribunal. Unfortunately the Applicant did not expand on these submissions and there is no indication that he raised this issue with the Tribunal during the hearing when the independent country information was being discussed. In the circumstances I am not satisfied that this ground of review can be sustained and should be dismissed.
Conclusion
The Applicant is a self represented litigant who indicated to the Court that he had insufficient funds to engage a lawyer and was incapable of pleading his application correctly because of his lack of legal training. He indicated that he prepared his application to the best of his knowledge and ability but was severely limited because of these impediments. As I have indicated above the Applicant was provided with independent legal advice regarding the preparation of his application. He also availed himself of the opportunity to file an amended application after he had received that advice. Unfortunately, in the absence of legal representation the Applicant is at a disadvantage however this Court and the Tribunal are well aware of the predicament faced by the Applicant. The substantial finding of the Tribunal was that the Applicant could relocate in India. The Tribunal in reaching that conclusion examined the personal circumstances of the Applicant in line with the authorities addressing this issue. I am satisfied that the Tribunal has adopted the correct approach to this evaluation in line with the appropriate authorities. The reasons contained in the decision record do not reveal any jurisdictional error in the Tribunal’s approach. Because the Applicant is self represented, and is aware of the difficulties he is faced by not being legally represented I have paid particular attention to the aspect of relocation although this issue was only raised in one other ground of review. I am satisfied that no jurisdictional error has occurred in the Tribunal’s approach and the application should be dismissed with costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 21 July 2010