SZOEB v Minister for Immigration and Citizenship

[2010] FCA 857

FEDERAL COURT OF AUSTRALIA

SZOEB v Minister for Immigration and Citizenship [2010] FCA 857

Citation:		SZOEB v Minister for Immigration and Citizenship [2010] FCA 857
Appeal from:		SZOEB v Minister for Immigration [2010] FMCA 363
Parties:		SZOEB v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 681 of 2010
Judge:		FOSTER J
Date of judgment:		11 August 2010
Legislation:		Migration Act 1958 (Cth), ss 5E, 424, 424A and 474
Cases cited:		SZOEB v Minister for Immigration [2010] FMCA 363 affirmed Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 applied
Date of hearing:	9 August 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	58
Solicitor for the Appellant:	The Appellant appeared in person with the aid of an interpreter
Solicitor for the First Respondent:	Mr R Baird of Clayton Utz
Solicitor for the Second Respondent:	The Second Respondent submitted save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 681 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOEB
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FOSTER J
DATE OF ORDER:	11 AUGUST 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of and incidental to the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 681 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOEB
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FOSTER J
DATE:	11 AUGUST 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate delivered on 24 May 2010 (SZOEB v Minister for Immigration [2010] FMCA 363) in which the Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 25 January 2010 and handed down on the same day.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship (the delegate) to refuse to grant a Protection (Class XA) visa to the appellant.

2. The appellant is a citizen of India who arrived in Australia on 8 July 2009.  He is a lawyer registered with the Rajasthan Bar Council.  He is married with two children.  His wife and children remain in India.  On 31 July 2009, the appellant lodged an application for a Protection (Class XA) visa (Protection visa application) with the Department of Immigration and Citizenship (the Department).  

3. In a Statutory Declaration subscribed on 31 July 2009 which accompanied the appellant’s Protection visa application, the appellant claimed that he had been persecuted in India by reason of his political affiliation.  In his Statutory Declaration, the appellant stated that he first became interested in politics in 1992 and was a member and supporter of the Bharatia Janata Party (BJP).  He stated that being of Jat background, his whole family were supporters of the BJP.  The appellant said that in 2001 he moved to Sujangarh to practise law and at that time he became a legal adviser to the BJP.  Prior to this, the appellant had worked in an offset printing business in Jaipur for two years.

4. At the time the appellant moved to Sujangarh, he claimed that Mr Bhanwan Lal Meghawal, the local leader of the Congress party, was the Legislative Assembly member for Sujangarh.  He said that Mr Meghawal associated with Mr Manish Harijan Valmiki (Manish), who the appellant described as a hard core criminal.  Manish, according to the appellant, was a member of the Congress party who had engaged in criminal activities (including kidnapping, murder, attempted murder and extortion) primarily directed against Jats.  Those activities, according to the appellant, were undertaken with the support of the Congress party, which used Manish to achieve its political objectives and to threaten its political opponents.   

5. The appellant claimed that in 2004 he advised the Jat community to campaign against Mr Meghawal in his bid for re-election to the State Legislature.  The appellant said that he assisted the Jat community in their campaign, claiming that his activities played a major part in the successful election outcome for the BJP, and that this brought him to the attention of senior Congress party leaders.

6. The appellant said that in 2006 he became aware that Manish had entered into an illegal property transaction.  The appellant claimed to have sent a letter objecting to the transaction to the Sub-Divisional Magistrates Office, which resulted in the Magistrates Office ordering that the land be vacated and the transaction effectively being cancelled.  In his Statutory Declaration, the appellant claimed that Manish, upon discovering that the appellant had objected to the transaction, made a number of attempts to kill him.  He said that he reported the matter to the local police and to BJP party officials.  The BJP party officials informed the appellant that such occurrences were not uncommon in Indian politics and that, while the rival Congress party would face severe political backlash if they attempted to kill the appellant directly, that party could easily target him through Manish.

7. The appellant stated that, although he was very nervous at this time even while his party was in power, in 2008 the situation changed drastically when the Congress party won the State legislative election and Mr Meghawal was again elected to the Legislative Assembly and became a Minister.  When the BJP lost the election, the appellant claimed that he sought police protection but was told that it was impossible to protect him from Manish while Manish’s party was in power.  The appellant stated that he kept changing his address and was traumatised about his helpless situation.  Ultimately, the appellant said that, after discussing the matter with his family, he decided to leave India to avoid being killed by Manish.

8. On 1 October 2009, the appellant attended an interview with the delegate.  At that interview, the appellant expanded on the claims which he had made in his Statutory Declaration.  The appellant said that he had been attacked by Manish on only one occasion when Manish struck him three to four times on his legs and shoulders with a hockey stick in a crowded marketplace and that this attack had taken place soon after he had lodged his objection to Manish’s property transaction.  The appellant also conceded that Manish had not attacked him between December 2006 and December 2008 when the BJP was the majority party in the State legislature.  He claimed that this was because, during that period, Manish was afraid of the police.  The appellant said that, after the State elections in December 2008, he was harassed by Manish who made numerous telephone calls to his mobile phone.  The appellant claimed that those calls constituted the numerous attacks on his life referred to in his Statutory Declaration.  The appellant alleged that those calls caused him to change his phone number in February 2009.  He did not, however, report those instances of harassment to the police as he believed that the police would favour the party in power, the Congress party, and decline to investigate his complaint.  He thought that the police would not protect him.  He also stated at the interview that he moved to Bikaner in January 2009 and stayed there until he came to Australia in July 2009.

9. The appellant claims that he cannot return to India for fear that Manish will continue to target him and try to kill him because of his political affiliation.  He claims that if he were forced to return to India, his life would be at risk from Manish.

10. The delegate refused the appellant’s Protection visa application on 1 October 2009.

11. The delegate concluded that the appellant’s political profile was not such as to attract the attention of the Congress party at either the state or the national level; that there was insufficient evidence to support the appellant’s contention that he had been attacked in the marketplace as he alleged; that the appellant’s failure to leave India until more than two years after the alleged attack by Manish cast doubt on the appellant’s assertions that Manish posed a serious threat to him; that the degree of harm allegedly experienced by the appellant was not sufficiently intensive, repetitive or prolonged as to constitute persecution; that the appellant’s qualifications in law and printing would enable him safely and reasonably to relocate within India; and, consequently, that the appellant did not and does not face a real chance of persecution or harbour a genuine fear of harm in India for reasons of his political opinion or any other Convention related reason.

    THE PROCEEDINGS IN THE TRIBUNAL

12. On 27 October 2009 the appellant applied to the Tribunal for a review of the delegate’s decision.

13. In a letter dated 9 November 2009, the Tribunal invited the appellant to appear before it to give evidence and to present arguments relating to the issues in his case.  That letter indicated that the hearing of the appellant’s application for review was scheduled to occur on 17 December 2009 and enclosed a form entitled “Response to Hearing Invitation” enabling the appellant to confirm the hearing and to make any requests or attach additional information for the Tribunal to consider.  A completed Response to Hearing Invitation form was received from the appellant by the Tribunal on 25 November 2009.  In that form, the appellant indicated that he required an interpreter who could interpret from the Hindi language into English and vice versa.

14. The Tribunal heard the appellant’s application for review on 17 December 2009. The hearing was conducted with the aid of a Hindi interpreter.

15. On 25 January 2010, the Tribunal notified the appellant of its decision to affirm the delegate’s decision and to dismiss his application for review thereof.

16. In its Reasons, particularly at [21]–[60], the Tribunal considered the appellant’s claims in detail.  It did so by reference to the interview which the delegate had conducted with the appellant on 1 October 2009, the appellant’s Protection visa application and accompanying Statutory Declaration, as well as the evidence given by the appellant at the hearing before the Tribunal on 17 December 2009.

17. The Tribunal also had before it the materials referred to in the delegate’s decision which included excerpts from the Indian Penal Code; a document addressed to the Sub Divisional officer of Sujangarh relating to land conversion; a page from the Sujangarh Legislative Assembly Election Voter List with the name Manish underlined; and a two page document headed Cases Registered against Manish Harijan at the Sujangarh police station.  It also had:

    (1)Documentation provided by the appellant headed Bar Council of Rajasthan recording his admission as an advocate on the Rajasthan Bar Council roll since 1996 and documentation headed Bar Association Sujangarh recording the appellant’s registration as an advocate by the Jodhpur Bar Council as well as referring to his work as an advocate in the court at Sujangarh;

    (2)An undated letter purportedly from the President of the BJP at Sujangarh stating that the appellant was appointed to a BJP party working committee in 2002 and appointed in the BJP “Legal Cell for Sujangarh City as President (Legal Consultant) in 2003”; and

    (3)A copy of the appellant’s passport.

18. At [41]–[61] of the Tribunal’s Reasons, the Tribunal recorded in considerable detail the conduct of the hearing before the Tribunal, the questions put to the appellant at the hearing and the answers given by the appellant to those questions.

19. It is not necessary to list comprehensively in these Reasons the many matters to which the Tribunal referred in this section of the Tribunal’s Reasons.  It is sufficient to note that, on a fair reading of these paragraphs, the Tribunal drew to the attention of the appellant all matters which it was required to point out to him and did so adequately and fairly.

20. In its Reasons, at [68]–[72], the Tribunal accepted that the appellant was involved with the BJP; that he had successfully lodged a complaint regarding Manish’s property transaction; that Manish became angry about the matter and assaulted the appellant on one occasion (probably in early December 2006); and that the police investigated the matter.  The Tribunal, however, rejected other aspects of the appellant’s claims and was not satisfied that the appellant had left India because of a fear of persecution.

21. At [69]–[71] of the Tribunal’s Reasons, the Tribunal said:

    69.The applicant claims that he was in fear of Manish until he left India in July 2009. The Tribunal notes that after the assault took place in December 2006 or January 2007, the applicant continued to live in the same place for a period of about two years. On the one hand the applicant claims that Manish intended to kill him and assaulted him on one occasion, but when asked by the Tribunal why he remained in the same place, he stated that Manish would not seek to harm him because the BJP was in power. He later told the Tribunal that Manish went to jail sometime in 2006 and had been released on parole when he attacked the applicant. The applicant could not tell the Tribunal when Manish had been imprisoned. He said he was in prison for three years and was released frequently. The applicant said that Manish finished three years in jail and was released in 2009. He then said that Manish was out of jail when the election took place in December 2008. The Tribunal is of the view that Manish assaulted the applicant in an angry moment on one occasion and did not seek to do so again. The Tribunal is of the view that the applicant was being untruthful when he told the Tribunal that Manish had been in prison for three years between 2006 and 2009. The Tribunal notes that the applicant provided a 2-page document containing 25 charges laid against Manish for the period 26 August 1996 to 23 May 2009, yet was unable to provide any details about any terms of imprisonment imposed upon him. The Tribunal does not accept that Manish was a threat to the applicant after the alleged assault took place or that he harassed the applicant, as claimed, after the BJP lost the election or that he intended to harm the applicant in any way. The Tribunal is supported in this finding by the applicant’s delay in leaving India and is of the view that had he genuinely feared serious harm from Manish he would have departed India much sooner than he did. The Tribunal is not satisfied that the applicant moved to Bikaner because he feared Manish. It was the applicant’s claim that Manish would not harm the applicant while the BJP was in power, yet he claimed that the assault at the market place occurred in January 2007 when the BJP was in power.

    70.It is the applicant’s claim that the police would not protect him once the BJP was no longer in power. The Tribunal does not find this evidence to be persuasive. The Tribunal is satisfied that the police have taken action against Manish on many occasions, as demonstrated by the document relied upon by the applicant. The Tribunal is satisfied that the police would offer protection to the applicant should he require it.

    71.The Tribunal does not accept that the applicant is in fear of serious harm. The Tribunal is of the view that Manish assaulted the applicant on one occasion and had he wished to seriously harm the applicant, he had ample opportunity to do so in the two year period after the assault took place. The Tribunal is not satisfied that there is a real chance that Manish will seriously harm the applicant in the reasonably foreseeable future. The Tribunal is not satisfied that there is any credible evidence upon which it could find that the applicant stands at risk of suffering serious harm in the reasonably foreseeable future if he returns to India. [Emphasis added]

22. For the reasons extracted at [21] above, the Tribunal found that the appellant was not at risk of harm were he to return to India and thus that the appellant did not have a well founded fear of persecution in India for a Convention related reason. The Tribunal therefore affirmed the delegate’s decision not to grant a Protection (Class XA) visa to the appellant.

    THE DECISION OF THE FEDERAL MAGISTRATE

23. On 19 February 2010, the appellant sought judicial review of the Tribunal’s decision.  

24. In his Application for judicial review of that decision, the appellant raised the following grounds:

    1.My point is that despite having attended in the hearing, it became imperative that, before the Tribunal made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order to fully compliance of s.424A as decided by the majority of High Court in SAAP.

    2.That the decision of the [Tribunal] was [a]ffected by jurisdictional error in that the Tribunal did not take in to account certain relevant consideration or ‘integers’ central to the [appellant’s] claims.

    3.The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction.

    Particular of Grounds

    a.The [T]ribunal did not consider the applicant who had been under immense and intimidating pressure from Congress party thug Manish and har[r]assed because of the applicant activities and membership with BJP party.

    b.In relation to above the Tribunal did not consider the applicant claim that if he has to go back to India in near future, Manish will seriously harm him.

    4.The Tribunal exceeds is jurisdictional or constructively failed to exercise its jurisdiction or denied my procedural fairness in that the Tribunal failed to investigate my genuine claims with the requirement of Migration Act1958.

    5.The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against my case in the final out come. The Tribunal used the all information for matter of reasoning and evaluation of my case for protection visa.

    6.The [Tribunal] member emphasised on some irrelevant questions at the hearing and ignored our profession and political background that put my life in danger. In doing so the Tribunal member have ignored relevant material and made finding which is erroneous or mistaken.

25. In an affidavit filed with his Application on 19 February 2010, the appellant stated:

    The Tribunal member failed to analyse properly the “future harm” 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.

26. On 10 May 2010, the appellant filed an Amended Application. In that Application, the appellant raised the following single ground of review:

    The Tribunal constructively failed to exercise its jurisdiction:

    Particulars:

    The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process in respect of these documents. The Tribunal ultimately gave the documents no weight on the basis of its credit findings. It was an error for the Tribunal to place no weight on the documents without engaging in an active intellectual process as to the contents of the document. It was an error for the Tribunal to assess the Applicant’s credit without first assessing whether the substance of the documents corroborated his claims.

1. At the commencement of the hearing before the Federal Magistrate the appellant applied for an adjournment of that hearing on the ground that he was unwell.  The Federal Magistrate declined to grant the appellant’s request for an adjournment. 

2. At [11]–[12] of his Reasons, the Federal Magistrate said:

   11.The applicant made oral submissions in support of his application. Those submissions all went to the merits of the Tribunal decision. I reminded the applicant of the grounds set out in his original application and amended application and invited him to provide details on those grounds which were partly unparticularised. He was not able to do so.

   12.The Minister’s submissions deal comprehensively with the grounds in the original application. I agree with those submissions.

3. The Federal Magistrate then proceeded to address the grounds in the appellant’s Application and Amended Application.

4. In his Reasons, at [13]–[21], the Federal Magistrate rejected each of the six grounds of review which he considered had been raised by the appellant. 

5. In respect of the first ground, the Federal Magistrate noted that the appellant had not furnished any particulars of that ground and that the obligation in s 424A(1) of the Migration Act 1958 (Cth) (the Act) did not arise. The Federal Magistrate reached the latter conclusion, at [13] of his Reasons, on the basis that:

   (1)The Tribunal’s reliance, in arriving at its decision, on information provided by the appellant for the purposes of the review fell within the exclusion contained in s 424A(3)(b) of the Act;

   (2)The Tribunal’s reliance on information given in writing by the appellant to the delegate fell within the exception in s 424A(3)(ba) of the Act;

   (3)There was no evidence that the Tribunal considered that information given orally by the appellant to the delegate would be the reason, or part of the reason, for affirming the decision under review; and

   (4)The Tribunal’s subjective appraisals, thought processes and determinations in relation to the appellant’s evidence did not attract any obligation under s 424A(1).

6. The Federal Magistrate also rejected the second ground.  He held that the appellant had failed to provide particulars of the matters which he contended had been overlooked by the Tribunal and had also failed to identify any particular integer of his claims which the Tribunal had overlooked.

7. In relation to the third ground, the Federal Magistrate noted that the Tribunal’s Reasons (at [69]–[71]) demonstrated that the Tribunal did in fact consider the appellant’s claims that he was under intimidating pressure from Manish and that Manish would seriously harm him if he were to return to India.  The Tribunal made findings in relation to those claims.  The real complaint of the appellant was that the Tribunal did not accept that Manish was a threat to the appellant after the marketplace assault and found that, in any event, the appellant would have access to effective State protection.

8. The Federal Magistrate dismissed ground four on the basis that there were no particulars furnished by the appellant which identified any enquiry which the Tribunal was required to make or evidence that the appellant had requested the Tribunal to make any particular enquiry with the consequence that the Tribunal’s failure to make enquiries did not rise to the level of constructive failure to exercise jurisdiction (see Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25]–[26]).

9. In respect of ground five, the Federal Magistrate agreed with the Minister’s submission that the Tribunal did not rely on any country information in its decision and therefore held that the ground was not made out.  In addition, the Federal Magistrate noted that the selection of country information and the weight to be attributed to that information by the Tribunal is a matter for the Tribunal.

10. In dismissing ground six, the Federal Magistrate held that the appellant had not provided any particulars of the irrelevant questions allegedly asked by the Tribunal or of the relevant material allegedly ignored by the Tribunal.

11. In respect of the appellant’s Amended Application, the Federal Magistrate said:

    19.The amended application places stress upon an alleged failure by the Tribunal to constructively exercise its jurisdiction in relation to the consideration of documents which are said corroborate the applicant’s claims. I accept the Minister’s submission that the Tribunal’s reasons demonstrate that it not only took into account documents submitted by the applicant to the Minister’s department and to the Tribunal but generally found those documents to support factual claims made by the applicant. What the documents did not do was to support the applicant’s claim that he had a well founded fear of serious future harm in India for a Convention reason in respect of which adequate state protection was not available from the Indian authorities.

12. The Federal Magistrate ultimately concluded as follows:

    20.I see no substance in the grounds in the amended application or in the original application. I am not able to discern from my own reading of the court book any jurisdictional error by the Tribunal.

    21.It follows that the Tribunal decision is a privative clause decision and accordingly, the application must be dismissed. I so order.

13. Having found no jurisdictional error in the Tribunal’s decision and having characterised the Tribunal decision as a privative clause decision, the Federal Magistrate dismissed the appellant’s original and Amended Applications with costs.

    THE APPEAL IN THIS COURT

14. The appellant filed a Notice of Appeal in this Court on 10 June 2010.

15. In that Notice, the appellant sought an order that the judgment of the Federal Magistrate be set aside and an order remitting the matter to the Tribunal for determination according to law, as well as costs. 

16. The grounds of appeal specified in the appellant’s Notice of Appeal are as follows: 

    1.The [Federal Magistrate] erred in holding that the decision of the Tribunal was a privative clause decision.

    2.The learned Federal Magistrate dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal.

    3.The Hon. FM failed to take consider that the Tribunal ultimately gave no weight on the documents without engaging in an active intellectual process as to the contents of the document.

17. The appellant appeared before me in person with the aid of an interpreter.  He did not seek to support his appeal with any submissions.  In Reply, he offered an explanation as to why he did not leave India in late 2006 or early 2007 and had remained there until July 2009.  He said that there were two reasons for his decision to remain in India.  First, between December 2006 and December 2008, the BJP was the governing party in the state where he was then living.  Second, Manish was in gaol for most of that time. 

    CONSIDERATION

18. Each ground of appeal relied upon by the appellant must be rejected.

19. Contrary to the respondent’s submissions, the appellant is entitled to raise the first and second grounds of appeal and does not require leave to do so.

20. I will address each ground in turn.

    Ground 1 (The Federal Magistrate’s Characterisation of the Tribunal’s Decision as a Privative Clause Decision)

21. Under the Act, a privative clause decision is taken to have the meaning given to it under s 474(2) of the Act which provides:

    Decisions under Act are final

    (2)In this section:

    “privative clause decision” means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).

22. The Tribunal’s decision satisfies the definition contained in s 474(2) of the Act and does not fall within the exemptions contained in subs (4) or subs (5) of s 474. Pursuant to s 5E of the Act, where there is a failure to exercise jurisdiction or an excess of jurisdiction in the making of the decision in question, that decision is a purported privative clause decision.

23. Thus, for the purposes of the Act, the Tribunal’s decision is either a privative clause decision—that is a decision within the meaning of s 474(2) where the Tribunal has not exceeded or failed to exercise its jurisdiction—or a purported privative clause decision. It does not matter which for present purposes. The Tribunal’s decision can only be successfully reviewed judicially if the appellant can demonstrate that it was relevantly affected by jurisdictional error. Ground 1 takes the matter nowhere.

    Ground 2 (The Federal Magistrate’s Failure to Consider the Legal and Factual Errors in the Tribunal’s Decision)

24. The appellant has not provided any particulars of this Ground.  The appellant has not identified the legal and factual errors committed by the Tribunal which he contends should have been considered by the Federal Magistrate nor has he attempted to demonstrate by argument or evidence any appellable error committed by the Federal Magistrate.  Ground 2 falls to the ground.  

    Ground 3 (The Tribunal’s Failure to Intellectually Engage with the Contents of the Documents Before It)

25. While the appellant has not identified the documents to which he is referring in this Ground, the appellant appears to be agitating the same issue as the issue which he raised in his Amended Application in the proceeding before the Federal Magistrate.

26. At [19] of his Reasons (extracted at [37] above), the Federal Magistrate directly addressed this issue. He said that he accepted the Minister’s submission that the Tribunal’s reasons demonstrate that it not only took into account documents submitted by the appellant to the Department and to the Tribunal but also found that those documents generally supported the factual claims made by the appellant. The Tribunal was not satisfied, however, that the appellant had a well founded fear of serious future harm in India for which adequate State protection was not available.

27. The critical documents before the Tribunal were those evidencing the nature and gravity of the appellant’s dealings with Manish.

28. It is not contentious that:

    (1)The Tribunal referred to a copy of the appellant’s passport, noting at [62] of its Reasons that the appellant was a citizen of India and at [69] of its Reasons that the appellant was able to depart from India much sooner than he did;

    (2)The Tribunal referred to certificates which proved that the appellant was entitled to practise as a lawyer in India.  It also made reference to a letter confirming the appellant’s appointment as legal consultant to the BJP in Sujangarh in 2003.  These documents informed the Tribunal’s acceptance, at [68] of its Reasons, that the appellant was a legal practitioner who was politically involved with the BJP; and

    (3)The Tribunal referred to documentation recording that the appellant made an objection regarding Manish’s property transaction in 2006, which the Tribunal apparently relied on to accept, at [68] of its Reasons, that the appellant had lodged a successful complaint in relation to the purchase of property by Manish.

29. At [69] of the Tribunal’s Reasons, the Tribunal referred to a two page document provided to the Tribunal by the appellant which listed 25 charges laid against Manish over the period between 26 August 1996 and 23 May 2009.  The Tribunal intellectually engaged with this document to the extent that it was reasonably able to do so when, also at [69] of the Tribunal’s Reasons, the Tribunal indicated that the document did not contain any details about terms of imprisonment imposed upon Manish (if any) and that the appellant had failed otherwise to supply such information.  Moreover, at [70] of the Tribunal’s Reasons, the Tribunal used the content of that document to reject the appellant’s evidence that the police in India would not protect him once the BJP was no longer in power, noting that:

    The Tribunal is satisfied that the police have taken action against Manish on many occasions, as demonstrated by the document relied upon by the [appellant]. The Tribunal is satisfied that the police would offer protection to the [appellant] should he require it.

30. The appellant did not attempt to prove either before the Federal Magistrate or before me that he had put contentions and arguments to the Tribunal which were directed to the way in which the Tribunal should treat the documents provided by the appellant to it.  He did not prove what, if anything, he had done in the proceeding before the Tribunal to explain the significance of these documents.  Nor did the appellant endeavour to put submissions to the Federal Magistrate or to me based upon these documents in order to demonstrate their relevance and weight.  He did not try to demonstrate the way in which the documents should have been considered by the Tribunal.  For example, the two page list of charges laid against Manish is not a document which is easy to interpret.  It does not spell out, on its face, the substance of the charges laid against Manish nor does it give any detail of the result (if any) of the hearing of those charges.  If the appellant had wanted the Tribunal, the Federal Magistrate or, for that matter, this Court, to make something of that list of charges, he would have had to do a great deal more than he has done.  

31. No error is evidenced in the Federal Magistrate’s consideration of the Tribunal’s reasoning in respect of the documents before it. This ground of appeal must therefore also be rejected.

    CONCLUSION

32. For the above reasons, none of the grounds of appeal relied upon by the appellant has been made out.  Consequently, the appeal must be dismissed with costs.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Associate:

Dated:       11 August 2010