SZOFV v Minister for Immigration - [2010] FMCA 720

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOFV v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 720

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed.

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

Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63
SZHVL v Minister for Immigration and Citizenship [2008] FCA 356
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630

Applicant:

SZOFV

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 560 of 2010

Judgment of:

Barnes FM

Hearing date:

1 September 2010

Delivered at:

Sydney

Delivered on:

1 September 2010

REPRESENTATION

Applicant:

In person

Counsel for the Respondents:

Mr P Reynolds

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $4,100.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 560 of 2010

SZOFV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal dated 22 February 2010 affirming a decision of the delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of India, arrived in Australia on 22 August 2009 from New Zealand. He applied for a protection visa on 24 August 2009. He participated in a Departmental interview, but the delegate of the first respondent refused to grant him a protection visa.
The applicant sought review by the Tribunal. He attended a Tribunal hearing.
In his protection visa application the applicant claimed to be an “active member of [the] Lathin (sic) Catholic community” in a particular part of Kerala in India and a “supporter of the Congress Party” who “was actively involved in communit[y] work”. He claimed that as a “minority and Christian activist” he faced threats from “Hindu fundamentalists” and from “the opposition party”. He claimed to fear that he would be killed if he returned to India, that he was being targeted by “Radical Hindus” and that the authorities could not protect him from such radical Hindus.
According to the material before the court, including the Tribunal’s and the delegate’s decisions, in the Departmental interview the applicant claimed he was attacked on 20 July 2008 by BJP and RSS workers and that this resulted in his hospitalisation for two months. He claimed he was attacked because he was a Congress worker and because he supported Catholic people. He also claimed that he was a Catholic youth worker in Kerala.
The applicant claimed that while he had lived in New Zealand between September 2008 and August 2009 he had not applied for protection because he was unaware that he could do so, but that a friend told him he could apply for protection in Australia.
In its reasons for decision the Tribunal set out in some detail what occurred in the Tribunal hearing. That is the only evidence before the court of what occurred at the hearing. However I note that the outline of evidence provided by the applicant as recorded by the Tribunal in its reasons for decision is not a transcript of the hearing.
The Tribunal recorded that the hearing was conducted with the assistance of an interpreter in Malayalam and English, that the applicant acknowledged that he understood the interpreter and when asked if he had any further documents to submit, said “he did not have any documents”.
Relevantly, after setting out in detail the applicant’s claims and matters put to him at the Tribunal hearing, in its findings and reasons the Tribunal accepted that the applicant was a Latin Catholic from a particular area in Kerala that had one of the large dioceses in which Catholics formed 13 per cent of the population. It also accepted that “the RSS, and other affiliated organisations…[had] been implicated in incidents of violence and discrimination against Christians and Muslims”. However, the Tribunal did not accept that the applicant was a witness of truth and was satisfied that he had “created his claims in order to obtain the visa sought”.
First, the Tribunal referred to the fact that the applicant had claimed at the Tribunal hearing to be active in converting persons to Christianity. The Tribunal stated:
… I accept that BJP-RSS activists have attacked those that attempt to convert Hindus, such as nuns and missionaries in Kerala India. I accept that actively being involved in converting Hindus is extremely risky conduct in India. When I put to the applicant that he did not advise the Department in his PVA about his conversion activities he responded that at the Department interview he requested a Malayalam interpreter and they organised a Hindi interpreter and that language is not familiar to him. The communication between himself and the officer did not go well and the questions were not directed to him properly. When I put to the applicant he had written in his PVA that he could speak, read and write English he said that he is not familiar with Hindi and he cannot express himself freely in English.
The Tribunal did “not accept as plausible that a person conducting such high risk activity as converting Hindus to Christianity in India would have omitted to inform the Department…about this activity” in his protection visa application. The Tribunal found that this explanation did “not ring true”. It also had regard to the fact that information provided by the Latin Archdiocese for the area from which the applicant which came did not suggest that ordinary worshippers undertook conversions and the fact that the independent information before the Tribunal did not “suggest that the Latin Catholic Church [was] involved in conversion activities in the same way as the missionaries of other church groups”. The Tribunal was of the view that “were worshippers of the Latin Catholic Church in [the part of Kerala from which the applicant came] involved in conversion activities some mention would have been [made of this] in the independent sources or on the internet site of the church itself”.
Further, the Tribunal did not accept the applicant’s claim that on 20 July 2008 he was attacked at home by a “load” of people, wounded with a knife and hospitalised as a consequence or that he had to go into hiding in Bombay. Nor did it accept his claims that two to four months earlier “he had been threatened and harassed about his Congress Party activities”, having regard to his failure to mention such claims in his protection visa application.
The Tribunal did not accept the applicant’s explanation for not informing the Department in his protection visa application about such claimed attacks and the need to go into hiding (that he did not have a Malayalam interpreter at the Departmental interview) being of the view that it did “not ring true that a person who was so seriously threatened, attacked and harmed” that he required hospitalisation would not have mentioned this in his protection visa application.
The Tribunal also had regard to the fact that the applicant did not apply for protection in New Zealand, notwithstanding that he made at least two applications for working visas in New Zealand. It did not accept as plausible in those circumstances that the applicant would not have made a claim for protection. It rejected his claim that he was not aware he could do so as an “invention” to explain his lack of application for a protection visa in New Zealand.
As the Tribunal was satisfied the applicant was not a witness of truth, it found he “did not convert Hindus to Christianity”.
It also found that he “was not threatened verbally, or physically attacked requiring hospitalisation” or that he went into hiding. Nor did it accept his claim that his wife was hospitalised. In relation to the applicant’s claims that named people from the BJP had warned him and had organised an attack on him, the Tribunal found that while the applicant had initially claimed that he had reported this incident to the police, he acknowledged that he had not completed a First Information Report. While the Tribunal accepted that there was corruption in the police force and that there was “a view that those convicted of attacks on Christians [did] not receive sufficient time in jail”, it found no independent evidence to support the applicant’s claim that the police acquiesced to the RSS or BJP, or that the government was only interested if there was a murder. The Tribunal found that independent evidence indicated that the police did prosecute those perpetrating attacks and that RSS members had been charged for attacks on Christian missionaries. It also had regard to the fact that the applicant did not access any of the avenues of protection available to him in Kerala.
The Tribunal also considered the applicant’s claims concerning his involvement in the Congress Party. As it did not accept the applicant was a witness of truth, the Tribunal did “not accept that the applicant was a member or supporter of the Congress Party or that [he] undertook any activities for or on behalf of” that party. In any event, it found that, even if it accepted that the applicant was a Congress Party supporter, there was no independent information before it “to indicate that anyone harassed supporters of the Congress Party” who carried out the activities the applicant claimed to have carried out. It was of the view that had there been such harassment it would have been referred to in independent sources.
The Tribunal considered the applicant’s claim that his friends who worked for the Congress Party had been attacked and that a particular named Congress Party worker was murdered in 2007. It found that even if this were to be accepted, as the applicant had stated, “there was a police case” and the information he provided did “not suggest that Congress Party members or supporters [did] not receive the assistance of the Kerala police”. The Tribunal also referred to the situation of the Congress Party in Kerala and the number of seats it had won in the last elections.
While the Tribunal accepted that the RSS opposed conversions from Hinduism, it reiterated that it did “not accept that the applicant was involved in any conversion activity” and found no information to suggest that the RSS or BJP attacked Latin Catholics for practising their faith in the area the applicant came from.
It also found no independent evidence to suggest that the RSS attacked or harmed Christians who lived in Hindu-dominated areas as the applicant had suggested, but that the evidence suggested that attacks were “concentrated in geographic pockets” and the applicant did not live in one of those pockets. The Tribunal was of the view that there would be some mention of any such matters in independent information before it.
In relation to country information suggesting that the authorities could be slow to respond to attacks against minorities, the Tribunal did not accept that police investigations in India for offences against Christians were ineffective or that prosecution of attacks on religious minorities signalled that they could commit such violence with impunity. Nor did the Tribunal accept that Latin Christian Catholics suffered discrimination within the legal system.
The Tribunal was satisfied that Christians were able to worship freely in Kerala and that Latin Catholic Christians received the protection of the Kerala authorities, including against the RSS and BJP. On this basis, the Tribunal was satisfied that the applicant’s claims of harm and threats by the RSS and BJP were implausible. It was also “not satisfied that the applicant [had] suffered discrimination in education in India” on the evidence before it.
As the Tribunal did not accept that the applicant was a witness of truth, it did “not accept that the applicant was attacked or harmed for any reason in India”. However, it went on to consider the situation if the applicant as an ethnic Latin Christian from Kerala were to return to Kerala, India, now or in the reasonably foreseeable future. Having regard to the number of Christians in that area and country information in relation to their safety (notwithstanding some evidence of attacks in October 2006) the Tribunal found that the independent evidence did not suggest that Christians were unable to worship freely in Kerala. For reasons which it detailed, having regard to independent country information, the Tribunal was satisfied that the police took action in relation to any attacks and did not discriminate against those who were Latin Catholics. It was not satisfied that their action was ineffective.
The Tribunal concluded that it was “satisfied that the Indian state ha[d] put in place reasonable measures to protect the lives and safety of its citizens, including an appropriate criminal law and the provision of a reasonably effective and impartial police force and judicial system”.
It found that there was no independent evidence “to support the applicant’s claims that he would not obtain state protection in India or that such protection would be denied or withheld to Latin Catholic Christians and/or Congress Party supporters from Kerala”. It found the chance of harm, if the applicant returned to India or to Kerala was remote.
The Tribunal found, considering all the Convention-related harms feared by the applicant cumulatively, that it was not satisfied that the harms complained of gave rise to a real chance of persecution now or in the reasonably foreseeable future.
The applicant sought review by application filed in this court on 16 March 2010. He filed an amended application on 11 June 2010 that stated that the “grounds originally relied upon [were] wholly replaced” by what was in the amended application. That amended application was drafted by a barrister.
The applicant did not file written submissions. However, in oral submissions today, the applicant indicated that he wished to rely on all the grounds in his original application and amended application. Counsel for the first respondent addressed all of those grounds and other matters raised by the applicant in his affidavit and in oral submissions and I have considered all of the issues raised by the applicant in these various ways.
It is convenient to consider first the ground in the amended application. It is that the Tribunal “committed jurisdictional error by failing to address the applicant’s claims in the way they were made”. The particulars to this ground are that “[t]he applicant stated in his Protection Visa application that he was an activist within the Latin Catholic Church in Kerala, South India”; he claimed (and this is a reference to a claim at the Tribunal hearing) “that he was active in converting Hindus to Christianity by conducting mediation courses for 10 – 15 days, after which Hindus and Muslims who participated started coming to church”; and that “[t]he Tribunal did not consider the way that [the applicant] claimed to be converting people to Christianity in rejecting his claims of involvement in conversions”.
The applicant claimed in his original protection visa application that he “was an active member of [the] Lathin (sic) Catholic Community”, was involved in the community’s work and was threatened by “Hindi-fundamentalists and the opposition party” because he was “a minority and Christian activist”. According to the Tribunal account of what occurred at the hearing, when it asked the applicant why he left India, he said he had been working in a particular place in Kerala for about eight to 10 years and “was interested and actively took part in the Kerala Catholic Youth Movement”. He also claimed “he was participating in Congress Party matters and in Christian matters and [that] he was converting Hindus to Christianity”.
According to the Tribunal, when it asked the applicant “how he converted people” he said:
that they conducted meditation courses for 10 to 15 days and Hindus and Muslims participated and started coming to the church. I put to him that he could not have been converting people as he neither a priest nor a nun. He said that he was supporting the people who were converting, especially the priest of the church and the enemies considered he was assisting and they hurt him physically and cut his hand and he had to leave the country.
The applicant claimed that he had been attacked on 20 July 2008 and that they had done this to him before, having warned him two or three times and told him not to be actively engaged in Congress Party work.
As set out above, in its findings and reasons, while the Tribunal accepted that the applicant was a Latin Catholic from the particular place he claimed to have come from in Kerala, it did not accept that he had been active in converting people to Christianity.
First, it cannot be said that the Tribunal was unaware of the way in which the applicant’s claims were made at the Tribunal hearing (that is that they conducted meditation courses and that Hindus and Muslims participated and then started coming to church. The Tribunal set this claim out in its account of the hearing. The Tribunal’s reasoning was applicable not only to the fact that the applicant engaged in conversions but also to the manner in which he claimed that he had done so.
The description of the way in which the applicant allegedly carried out conversions was part of his evidence given in support of his claim that he was involved in conversions. The absence of a specific reference to this material can be seen as the Tribunal not adverting to evidence, as opposed to a failure to consider the claim of conversions. In any event, even if the way in which the applicant undertook conversions was characterised as a claim, it was subsumed by the broad finding that the applicant was not involved in conversions.
I accept the first respondent’s submission that the Tribunal’s express rejection of the applicant’s claimed activity in converting persons to Christianity was sufficient to constitute a rejection of the specific matters it was said that the Tribunal had not considered, such as the particular way in which the applicant claimed to have been involved in converting Hindus that was not expressly referred to in the findings and reasons part of the decision. I am satisfied on consideration of the Tribunal decision as a whole, that it was not necessary for the Tribunal to make a specific finding on this matter because the way in which the applicant undertook conversions was subsumed by the broader finding by the Tribunal that the applicant was not involved in conversions.
In those circumstances, it was not necessary for the Tribunal to go on expressly to deal with every aspect of the basis for the applicant’s claims to have been involved in conversions (see in that respect WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46] to [47]; [2003] FCAFC 184). As pointed out in WAEE, it is not necessary for the Tribunal to refer to every piece of evidence and every contention in its written reasons. Moreover, while an inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons, “that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point” (at [47]).

The Tribunal’s reasons in this case are otherwise comprehensive and the issue was identified. On a plain reading of the Tribunal’s reasons for decision, without an eye too keenly attuned to error (having regard to the principles in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6), it is apparent that the Tribunal considered but rejected the applicant’s claimed involvement in conversion activities, however undertaken.
It was also submitted for the first respondent that the Tribunal made an independent effective state protection finding. However I note that that effective state protection finding was made in relation to the applicant’s situation as an ethnic Latin Christian, rather than as an ethnic Latin Christian who engaged in conversion activities. I do not consider it is necessary to consider whether that finding would be sufficient to mean that any error on the part of the Tribunal was not jurisdictional in nature, as it has not been established that the Tribunal did make an error of the nature contended for in the amended application.
In the original application, the applicant relied on four grounds. The first ground is that the Tribunal “did not give the applicant before the hearing the Independent Country information that it had about Kerala and India” that it used in its decision. This was said to be a breach of s.424A of the Migration Act 1958 (Cth). First, there is no obligation on a Tribunal under s.424A to give information within subsection (1) to an applicant prior to a hearing. In any event, the exception in s.424A(3)(a) is applicable to exclude country information from the concept of information and hence the s.424A obligation did not arise in the manner suggested. Ground one in the original application is not made out.
Ground two is expressed as a claim that the Tribunal “failed to carry out its review function and to exercise its jurisdiction”. The first particular to this ground is that “the tribunal did not consider the applicant who had been under immense and intimidating pressure from Hindu extremist groups and parties and harassed and attacked because of [his] activities and membership [of a] Christian organisation and Congress Party”. The second particular is that, “[i]n relation to above the Tribunal did not consider the applicant claim that if he ha[d] to go back to India in near future, they will seriously harm him”.
This appears to be intended to be a claim that the Tribunal did not consider aspects of the applicant’s claims or consider the prospect of harm to him were he to return to India. However, it is apparent from the Tribunal reasons for decision that the Tribunal did consider whether the applicant had a well-founded fear of persecution should he return to India now or in the reasonably foreseeable future by virtue of his involvement in Christianity as claimed and his activities in relation to the Congress Party.
The Tribunal considered the situation of Christians in India, the claims about his involvement in conversions and also his claims about involvement in the Congress Party. It specifically considered the possibility of future harm to the applicant as an ethnic Latin Christian from Kerala, the aspect of his claims that it accepted.
Insofar as the applicant takes issue with the Tribunal’s failure to accept his claims in certain respects he seeks impermissible merits review. Ground two is not made out.
Ground three is that “the Tribunal failed to consider an integer of Applicant’s claim, in failing to consider wether (sic) or not a liberal Christian in (sic) was at risk of harm from radical Hindus, and not able to access effective protection”.
Again, insofar as this ground seeks merits review, merits review is not available in this court. Contrary to the applicant’s contentions, the Tribunal did consider the risk of harm and the availability of effective protection and the situation of Latin Christians in the area of India from which he came. The Tribunal found, however, that there was no independent evidence to support the applicant’s claims that state protection would not be available or that it would be denied or withheld to Latin Catholic Christians and/or Congress Party supporters from Kerala. It was satisfied that the real chance of harm if the applicant were to return to India or to Kerala was remote. This is ground is not made out.
In ground four the applicant claimed that the Tribunal “denied [him] procedural fairness by reaching adverse conclusions that [his] claims were implausible”. These were said to be conclusions “that were not obviously open on the known material, without giving [him] the opportunity to be hard (sic) in respect of the matter”.
It appears that the applicant may be intending by this ground to allege a failure to comply with s.425 of the Migration Act, consistent with the principles considered in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63. There are no particulars except those that refer to the Tribunal reaching adverse conclusions that were not obviously open to it on the known material.
The material before the court does not support such a claim. There is no evidence before the court, other than the Tribunal reasons for decision, as to what occurred at the Tribunal hearing. The account by the Tribunal of what occurred at the hearing is contrary to the applicant’s general claim that he was not given the opportunity to be heard.
The material before the court is not such that the court should infer that some particular matter was not put to the applicant at the hearing. The Tribunal recorded that it in fact put a number of matters of significance to the applicant for comment during the course of the Tribunal hearing, including concerns about his claim that he, as a lay member of the Catholic Church, was involved in conversions, independent information in relation to a number of issues and the absence of independent information in other respects. The Tribunal also put to the applicant a number of matters that related to the issues of effective protection, as well as the issue of whether as an ordinary member of the church he had been involved in conversions, specifically putting to him that the Latin Archdiocese for the area from which he came and the website did not suggest that ordinary worshipers undertook conversions. It raised with the applicant concerns about his failure to apply for a protection visa in New Zealand.
This ground is not made out and nor is there anything in the material before the court to lead to an inference or to support a claim that the Tribunal failed to comply with s.425 of the Migration Act.
For the sake of completeness, I note that in the affidavit filed on 16 March 2010 the applicant claimed that the Tribunal “failed to investigate [his] claims, specially the ground of persecution in India” and contended that therefore the “decision was effected by actual bias”. The duty of the Tribunal is to review. It is not under a general obligation to investigate an applicant’s claims or to make inquiries insofar as this seems to be intended to be contended. There is nothing in the material before the court to suggest that this case is within the limited circumstances in which the Tribunal has an obligation to make inquiries or obtain further information (Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39). Nor is there anything in the material before the court to support a claim of actual bias on this or, indeed, on any other basis (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17).
Actual bias is a serious allegation that must be clearly particularised. It is only a rare and exceptional case in which actual bias will be established from the Tribunal reasons for decision alone (see SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 and SZHVL v Minister for Immigration and Citizenship [2008] FCA 356). There is nothing in the Tribunal reasons for decision and its summary of the hearing to establish an allegation of actual bias. The fact that the Tribunal had concerns and drew those to the applicant’s attention during the hearing is not indicative of actual bias. Its decision was open to it on the material before it for the reasons which it gave. These claims are not made out.
In oral submissions the applicant raised new issues: that the Tribunal had not provided him with enough time at the Tribunal hearing, and that when he started to talk about his conversion activities the Tribunal stopped the whole thing and that he could not go on. There is no transcript of the Tribunal hearing before the court and the Tribunal’s account of what occurred in the hearing does not support the applicant’s contentions in this respect. According to the Tribunal hearing record, the hearing commenced at either 10.43 am or 10.45 am and closed at 13.12 pm. There was obviously a considerable amount of time in which the applicant had the opportunity to raise issues with the Tribunal. The Tribunal’s record of what occurred in the hearing is not supportive of his claim that he did not have an opportunity to express his claims and elaborate on his claims in relation to conversion or otherwise.
If the account of the Tribunal hearing is chronological, the initial discussion of conversion was after the hearing had commenced and the Tribunal returned at a later point, towards the end of the hearing, to aspects of its concerns about his claims to have been involved in conversions which it put to him and gave him the opportunity to comment on. The Tribunal also recorded that at the end of the hearing it asked the applicant if he had anything further to place before the Tribunal. His claim in this respect is not made out.
In oral submissions the applicant also took issue with the Tribunal’s conclusions and failure to accept his claims. In that respect he seeks impermissible merits review. He contended that the police did not help him. However, the Tribunal considered this claim and its conclusions in that respect and in relation to the availability of effective State protection, were open to it on the material before it for the reasons that it gave. Once again, merits review is not available in this court.
The applicant raised an issue about the availability of certain evidence in support of his claims. The obligation to make his case is on the applicant. The Tribunal recorded at the start of the hearing that when asked if he had any further documents to submit, the applicant said he did not have any documents. There is nothing in the Tribunal’s account of the hearing to indicate that the applicant asked for the opportunity to put further material before the Tribunal.
Insofar as the applicant referred specifically to a certificate in relation to his injuries, it appears from his oral submissions that he was suggesting that he did not have such a certificate with him at the time of the Tribunal review, although he now has it. As indicated, there is nothing in the Tribunal reasons for decision or elsewhere in the material before the court to indicate that the applicant sought to put such further material before the Tribunal. On a number of occasions the Tribunal referred to the applicant’s claims at the hearing about attacks on him and injuries and hospitalisation, but there was no reference to the possibility of any such further evidence being put before it.
There is also no evidence to support the applicant’s claim that he informed the Tribunal either that he had a certificate, that he could provide one or that he sought additional time to get a certificate. No jurisdictional error is established on this basis.
The applicant also sought to provide to the court a further explanation for inadequacies in his protection visa application, based on the fact that he had to lodge that application quickly, given that he only had a visa for three days when he first came to Australia. In raising such matters, the applicant seeks a merits review. These were matters that he had the opportunity to raise with the Tribunal, in particular when it expressed concern about his failure to include certain matters in his protection visa application.
Insofar as the applicant did provide explanations to the Tribunal for such shortcomings, as recorded in the Tribunal reasons for decision, the Tribunal considered such claims, in particular in relation to his failure to mention either in his protection visa application or to the Department at interview, his claims of involvement in conversions and also his claims about hospitalisation.
The applicant took issue with the fact that for the Departmental interview he had requested a Malayalam interpreter but was provided with a Hindi interpreter. I note that for the Tribunal hearing the applicant was provided with a Malayalam interpreter. He raised what had occurred in the Departmental interview with the Tribunal, so that the Tribunal had the opportunity to consider whether this provided an explanation for shortcomings in his earlier claims. In the course of the Tribunal hearing the applicant claimed that his communication with the delegate did not go well and that Hindi was not his language. The Tribunal put to him that the Tribunal member had listened to the interview and that he had not, at any time, stated that he had difficulty understanding the interpreter, and that he had written in his protection visa application that he could speak, read and write English.
In its findings and reasons the Tribunal referred to this explanation in considering the applicant’s claims about involvement in conversions and about having been attacked and hospitalised. It rejected these explanations for his failure to have omitted to inform the Department in his protection visa application about conversion activities and about hospitalisation, having regard to the high-risk nature of the activity and circumstances in which a person, claimed to have been so seriously threatened, attacked and harmed that he would required hospitalisation.
I note that this is not a review of the delegate’s decision. The claims that the applicant makes in relation to the absence of a Malayalam interpreter at the Departmental interview and the time he had to complete his initial protection visa application do not establish jurisdictional error on the part of the Tribunal.
Insofar as the applicant now seeks, more generally, that the matter be returned to the Tribunal so that he has the opportunity to put before it more fulsome evidence, including evidence from a Bishop or a certificate in relation to his injuries, the court has no discretion on such grounds and as the applicant has not established any jurisdictional error on the part of the Tribunal, the application must be dismissed.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful and there is nothing in the circumstances of the present case to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the first respondent. The amount sought is appropriate in light of the nature of this and other similar matters. I note that it is less than the amount provided for in the Federal Magistrates Court Rules.
The applicant’s claim that he needs more time is not a matter that makes it inappropriate to make the order sought, although it is a matter for the Minister as to how and when he seeks to recover such costs.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 24 September 2010