SZOJV and Ors v Minister for Immigration and Anor (No.2)

[2012] FMCA 29

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOJV & ORS v MINISTER FOR IMMIGRATION & ANOR (No.2) [2012] FMCA 29

MIGRATION – Review of decision of Refugee Review Tribunal – whether there was bias on the part of the Tribunal member – whether the applicant was given an opportunity to be heard – relocation – Tribunal’s findings were open to it on what was before it – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91R, 424A, 425, 430, 476

SZOJV & Ors v Minister for Immigration & Anor [2011] FMCA 91
Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379
Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559; (1997) 144 ALR 567
SZQMR v Minister for Immigration & Anor [2011] FMCA 992
Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 178 ALR 421
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 180 ALR 1
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481
SZATV v Minister for Immigration & Citizenship [2007] HCA 40; (2007) 233 CLR 18; (2007) 237 ALR 634
Plaintiff M13/2011 v Minister for Immigration and Citizenship [2011] HCA 23; (2011) 277 ALR 667
SZQBC v Minister for Immigration & Anor [2011] FMCA 563
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294; (2005) 215 ALR 162
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609
VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471

First Applicant: SZOJV

Second Applicant: SZOJW

Third Applicant: SZOJX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1620 of 2011

Judgment of: Nicholls FM

Hearing date: 4 November 2011

Date of Last Submission: 22 November 2011

Delivered at: Sydney

Delivered on: 20 January 2012

REPRESENTATION

The First Applicant: In person.

The Second Applicant: Represented by the first applicant

The Third Applicant: Represented by the first applicant as the litigation guardian

Appearing for the Respondents: Ms E Baggett

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application made on 29 July 2011, and amended on 14 September 2011, is dismissed.

2. The first and second named applicants pay the first respondent’s costs set in the amount of $

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1620 of 2011

SZOJV

First Applicant

SZOJW

Second Applicant

SZOJX

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 29 July 2011, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), and amended on 14 September 2011, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 5 July 2011, which affirmed the decision of the delegate of the respondent Minister to refuse a protection visa to the applicants.

Background

1. The applicants are a husband (“the applicant”), his wife and their child. They are all nationals of India who arrived in Australia on 13 June 2009. They applied for protection visas on 9 September 2009 (see Court Book – “CB” – CB 1 to CB 38). The applicant’s wife and child applied as members of the applicant’s family unit. They did not make claims to be refugees in their own right.

2. The applicant’s claim to fear persecutory harm was said to emanate from the Sikh community and militants because of his religious beliefs, in particular, his membership of the Dera Sacha Sauda (“DSS”) sect (CB 18 to CB 19).

The Delegate

1. The Minister’s delegate refused the application based on “… concerns in regard to the overall credibility of the applicant and the veracity of his claims…” (CB 78.9).

The Tribunal

1. The applicants applied to the Tribunal for review on 23 June 2010 (CB 89 to CB 92). A previously constituted Tribunal affirmed the delegate’s decision (CB 111 to CB 127). Following, an application to this Court, the Tribunal’s decision was quashed, having been found to be infected with jurisdictional error (see SZOJV & Ors v Minister for Immigration & Anor [2011] FMCA 91 (“SZOJV”) per Barnes FM). The matter was returned to the Tribunal for reconsideration.

2. The applicants were invited to attend a hearing before the Tribunal, as constituted for current purposes (CB 130 to CB 133). It appears only the applicant attended to give evidence (CB 137). The Tribunal’s account of what occurred is set out in its decision record ([38] at CB 158 to [57] at CB 161).

3. The Tribunal understood the applicant’s claim to fear persecutory harm to be on the basis of his religious beliefs and membership of the DSS. The Tribunal questioned the applicant about his belief, his fears, and the incidents of harm he had put forward in support of his claim. The Tribunal also questioned him about relocating to other parts of India.

4. The Tribunal, albeit expressing some doubt, which it resolved in the applicant’s favour, accepted that he was a follower of DSS who had suffered injuries in clashes between Sikhs and the DSS, and whose house had been attacked ([61] to [62] at CB 161).

5. Although on the evidence it was open to a differently constituted Tribunal to have come to a different view, particularly in light of country information to which the Tribunal told the applicant it had regard (see [55] at CB 160), the Tribunal accepted that the applicant’s past treatment did amount to “serious harm” for the purposes of s.91R(1)(b) of the Act ([63] at CB 161).

6. In the circumstances of this case, it is not really necessary to pursue any deeper consideration of any possible legal error in the Tribunal’s understanding of the relevant test in its equation of past activities and the applicant’s continued DSS activities on return with establishing a “… possibility that he may face similar treatment…” upon his return. That is, it “… cannot be ruled out.” ([63] at CB 161.) This raises the question as to whether the Tribunal’s expression, in context, is cognisant of the real chance test.

7. Nor is there need for similar consideration of the fact that the Tribunal equated such a finding, or reasoning, with “… [i]n other words, there is a real chance that he would face significant harassment or serious physical harm…” ([63] at CB 161) (see generally, Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 at 389, 406-7, 396-8 and 428-9 per Mason CJ, Toohey, Dawson and McHugh JJ and Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559; (1997) 144 ALR 567).

8. The reason is that, in giving the applicant such benefit of the doubt, it cannot be said that the above was the reason that the Tribunal affirmed the delegate’s decision.

9. The basis for the Tribunal’s affirmation was that it found that the applicant’s well-founded fear of persecutory harm was “localised” to the applicant’s home area ([64] at CB 162). The Tribunal found that it was reasonable and practicable for the applicants to relocate to a different part of India ([74] at CB 164, and consideration from [64] at CB 162 to [73] at CB 163).

10. I should just note that I respectfully share concerns expressed by Driver FM in SZQMR v Minister for Immigration & Anor [2011] FMCA 992, as to the approach taken by some Tribunal members in dealing with what, on their face, appear to be straightforward cases, by the “expedient” use of the concept of relocation in determining the review (see further below).

11. In any event, and for now, the Tribunal had regard to country information before it that indicated that clashes between Sikhs and DSS followers had been scarce in the past two years, and it could find no information to suggest that recent clashes had spread across India, or that DSS followers had been subjected to harm in a number of other Indian cities.

12. Importantly, the Tribunal had regard to the applicant’s objections to relocation as expressed or presented at the hearing (Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265 (“Randhawa”) and SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 (“SZMCD”)). In any event, it also considered other factors (for example employment) personal to the applicant.

The Amended Application to the Court

1. The amended application raises two grounds.

2. These are:

   “1. My point is that despite having attended in the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order for fully compliance of s424A as decided by the majority judge of the High Court in SAAP.

   2. The Tribunal failed to consider an integer of my claims, in failing to consider whether or not a DSS member in India was at risk of harm from radical Sikhs, and not able to access effective protection whilst the Tribunal is satisfied that my house was attacked with stones in January 2009 while I was hosting a prayer meeting.”

Before the Court

1. At the hearing the applicant appeared in person. He confirmed he was also representing his wife’s interests before the Court, and understood his obligations as his son’s litigation guardian. The applicant was assisted by an interpreter in the Hindi language. Ms E Baggett appeared for the first respondent.

2. Before the Court the applicant sought to abandon the grounds as set out in the amended application (“I do not follow this”). He put forward a series of complaints which reveal a misunderstanding of the Tribunal’s reasoning.

3. The complaints were:

   1)He “got an impression” that during the hearing before the Tribunal it had “already made up its mind and sent us the decision which was pre-planned.”

   2)That he was not provided with “enough opportunity before the Tribunal (“they finished the hearing within five to seven minutes”).

   3)The Tribunal did not believe he was a member of the DSS.

   4)He challenged the Tribunal’s finding as to relocation to another part of India.

4. It appears, having regard to the decision record of the previously constituted Tribunal, and to the judgment of Barnes FM in SZOJV, that the applicant’s complaints, and in large part the grounds of the amended application, derive from the issues raised in that matter.

Consideration

The First Complaint

1. The first complaint can be seen as some assertion of bias, or the apprehension of bias, on the part of the Tribunal (see also SZOJV at [37]).

2. It must be noted that such allegations are serious (unlike other jurisdictional errors) as bias, or the apprehension of bias, are an attack not just on the reasoning of the relevant decision-maker, but on his or her personal integrity .

3. In any event, having regard to the relevant tests I cannot see that this claim can be made out (see Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 178 ALR 421 (“Jia Legeng”) at [69] per Gleeson CJ and Gummow J and at [127] per Kirby J, SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 (“SBBS”) at [43] per Tamberlin, Mansfield and Jacobson JJ, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 (“VFAB”) and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 (“Ex parte H”)).

4. The applicant’s basis for the assertion, having regard to the circumstances, appears to also derive from the Tribunal having put to him certain information that suggested there had been no serious clashes between Sikhs and DSS followers in recent times ([56] at CB 160).

5. Further, that the Tribunal told him at the hearing that he could reasonably relocate (“… you can stay anywhere in India..”) (see [57] at CB 160).

6. It may be allowed in one sense, as Ms Baggett submitted, that a Tribunal in its decision record, when accepting a factual claim made by an applicant, does so “quickly”. In other words, Tribunals need not waste time on lengthy, or considered, explanation as to why they accept an assertion of fact made by the applicant. That such explanation is focused on the reasons for affirming the delegate’s decision.

7. However, I have some concerns in this regard. Tribunal decision records are not meant to be some basic “tick the box” exercise to satisfy the Courts that the Tribunal conducted some analysis.

8. In the current case, the Tribunal’s decision record was plainly prepared because s.430 of the Act compels its creation. In my view, the object of s.430 is to inform the interested reader, such as the Court, but no less the applicant, as to the reasoning that led to the determinative consideration in the review So much is at least implicit, if not explicit, in the wording of s.430 and the legislative context in which it appears.

9. The requirement to set out findings on material questions of facts (s.430(1)(c) of the Act) does not differentiate between those findings adverse, or not adverse, to an applicant. The key is what is “material” to the “reasons for the decision” (s.430(1)(b) of the Act). Such that the Tribunal’s analysis and reasoning can be properly understood.

10. A Tribunal decision record which merely records acceptance of some facts positive to an applicant’s claims, and goes no further, leads to the situation in the current case, and also leaves the Tribunal open to the type of criticism put by this applicant.

11. The applicant is plainly not a person versed in the law or the requirements of administrative decision-making. As a lay person in this sense, what may be “allowed” by legal practitioners (see [28] above), does not suffice.

12. The applicant in the current case, having gone through the Tribunal process earlier, a process which he knew was found to be flawed at law, attended a hearing before the Tribunal where, properly, certain propositions adverse to his claims were put to him (see [52] and [55] – [57] at CB 160).

13. That some of these had to do with “relocation”, and not necessarily his local area, is a distinction that may have meant something to the Tribunal, but given what he put to the Court, was lost to the (lay) applicant. This latter point is plainly not a criticism of the applicant. But it is a reminder to the Tribunal of the care that must be taken in setting out the reasons for its decision.

14. By its lack of care in this regard, the Tribunal has now created the environment which enables the applicant to, in that sense quite understandably, put to the Court that he gained the impression that the hearing was merely a “routine” device, and that the outcome had been “predetermined”.

15. That is, that the Tribunal (in its earlier constitution) had found him not to be credible in key aspects of his claims. This Court “overturned”, or from the applicant’s perspective, “rejected” that decision. The current Tribunal was therefore said to be disposed, in these circumstances to find against him, and this is said to be seen in its “quick” acceptance of those factual claims not accepted by the earlier Tribunal, thus avoiding the difficulties raised before the Court. Yet it found another way to find against him. In that sense, the outcome was “predetermined”.

16. The presentation in the decision record of the ready acceptance, without exploration, of what had been clearly rejected by the earlier constituted Tribunal (the applicant’s credibility and his claimed membership of the DSS at [78] – [80] at CB 124), clearly left the applicant in a position where the subsequent finding on relocation, which was adverse to him, could only be seen as some “predetermined” device. At least that is what was, at least, implicit in his complaint before the Court.

17. This situation was not helped by the delegate’s decision which, as with the Tribunal subsequently, appeared to have proceeded on the “safer” option of relocation rather than properly tackling the merits of the applicant’s substantive factual claims.

18. The delegate made a clear finding that: “… I do not find the applicant credible and I not accept that his circumstances were as claimed. Based on the applicant’s vague testimony about his circumstances in India I am not satisfied that the applicant is a genuine, committed member of the DSS…” (CB 79.8).

19. Inexplicably the delegate then went on to say: “… [n]evertheless for the purpose of this assessment I give the applicant the benefits of the doubt and accept that he is a member/follower of the DSS…” (CB 80.2).

20. The delegate then went on to find that “relocation is a reasonable option” (CB 83.1). The application for the visas was refused on this basis.

21. In many ways this was the, albeit far less sophisticated, approach subsequently adopted by the Tribunal.

22. The import of this in the current consideration is that given that the Tribunal must be presumed to have read the delegate’s decision (after all it is the decision which the Tribunal is supposedly reviewing), the confusion engendered by the delegate’s decision on its own should have alerted the Tribunal to the need to properly present and explain its reasoning, and the findings which informed it.

23. However, and in any event, to make out jurisdictional error requires more than the above circumstances.

24. Any failure arising from s.430 of the Act, on its own, does not lead to jurisdictional error (Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 180 ALR 1 at [68] per McHugh, Gummow and Hayne JJ). [I can only observe that were it otherwise it may serve to overcome the problem set out above.]

25. Further, bias, or the apprehension of bias, must be distinctly made and clearly proven (Jia Legeng at [69] per Gleeson CJ and Gummow J and at [127] per Kirby J, SBBS at [43] per Tamberlin, Mansfield and Jacobson JJ, VFAB and Ex parte H).

26. The applicant’s subjective “impression” now, no matter how understandable in the circumstances, does not meet these requirements. On the evidence before the Court, it cannot be said that the Tribunal did not bring an open mind to the proceedings in the sense that that concept is understood at law.

27. In this regard, I accept, as submitted by Ms Baggett, for example at [55] – [57] (at CB 160), that the Tribunal exposed its thought processes to the applicant at the hearing sufficiently to reveal an opportunity to the applicant to comment. On the evidence, it cannot be said it did not take the applicant’s evidence into account, or rejected it, irrespective of the answer.

The Second Complaint

1. The second complaint before the Court must be dismissed. The applicant asserts he was not provided with “enough” opportunity to be heard before the Tribunal.

2. His factual example (a hearing of five to seven minutes duration) cannot be sustained in light of the evidence before the Court. The Tribunal’s relevant hearing record reveals a hearing of some one and a half hours (CB 138). Nor, given the Tribunal’s account, unchallenged by any evidence to the contrary, is it conceivable that such an account represents only five to seven minutes of discussion.

1. For the sake of completeness, I note that all the applicants were invited to a hearing pursuant to s.425 of the Act. As set out above, there is only one issue determinative of the review, that of relocation. Bearing in mind what the High Court said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592, this issue was a live issue as a result of the delegate’s decision (CB 82). In any event, it was raised at the hearing by the Tribunal ([57] at CB 160). In the circumstances, the applicant was on notice of the issue that disposed of the review, and was given the opportunity to comment.

The Third Complaint

1. The third complaint was that the Tribunal did not believe the applicant was a member of the DSS. While the applicant was asked questions about his association with the DSS at the hearing ([45] – [48] at CB 159), it is clear, as set out above, that the Tribunal accepted that he was a follower of the DSS movement ([61] at CB 161).

The Fourth Complaint

1. The fourth complaint was a challenge to the Tribunal’s findings as to his relocation to another part of India to avoid persecutory harm.

2. To the extent that this is a challenge to the Tribunal’s findings of fact, then it does not rise above a request for impermissible merits review, and should be rejected on that basis (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481).

3. The relevant test for the consideration of the question of relocation is that as set out in Randhawa per Black CJ and as endorsed and explained further in SZATV v Minister for Immigration & Citizenship [2007] HCA 40; (2007) 233 CLR 18; (2007) 237 ALR 634 (“SZATV”).

4. However, at the hearing I did raise with Ms Baggett whether the direction provided more recently by Hayne J in Plaintiff M13/2011 v Minister for Immigration and Citizenship [2011] HCA 23; (2011) 277 ALR 667 (“M13”) raised difficulties for the Minister in the current circumstances. In light of the Tribunal’s decision, I granted leave for the parties to file written submissions on this question. Only the Minister filed (further) written submissions.

5. In M13 the Court found error in a delegate’s decision concerning relocation within the country of claimed persecution, Malaysia, by a protection visa applicant.

6. His Honour identified three problems with the delegate’s decision in this regard:

   1)The delegate expressly stated that he did not know where the plaintiff in that case had been living before she left Malaysia;

   2)The delegate made only a vague, general assertion as to a place to where the plaintiff could relocate (at [19]); and

   3)The delegate only provided non-specific reasons as to why relocation would be reasonable ([18] – [22]).

7. In the current circumstances, the Tribunal made no explicit statement as in (1) above. To the contrary, the Tribunal understood, and accepted, the applicant’s claims to fear persecutory harm, albeit localised to his home village where the applicant had suffered past harm. For example, the Tribunal accepted that his house had been attacked in January 2009 ([23] at CB 157, [62] – [63] at CB 161).

8. As to the other two “problems” in M13, I agree with Ms Baggett that in essence the delegate’s error there was that on a reading of the decision record as a whole, the particular circumstances of the plaintiff were not considered in forming the opinion that the plaintiff could relocate to avoid the risk of persecution (see [22] of M13).

9. In other words, there must be some degree of specificity expressed in the decision record, linked to the circumstances presented. The need is for more than just a general reference to relocation, such that the particular circumstances can be properly considered.

10. In my respectful view, when properly understood, M13 does not expand the test set out in Randhawa and SZATV. The requirement is that the Tribunal must consider the reasonableness and practicality of relocation with sufficient reference to the plaintiff’s/applicant’s individual circumstances presented.

11. Further, I also respectfully agree with Smith FM who, in light of M13, recently considered the question of whether the relevant

    
    

    decision-maker was required to name a place to which an applicant could relocate (SZQBC v Minister for Immigration & Anor [2011] FMCA 563 (“SZQBC”)).

12. His Honour said at [36] – [37] (of SZQBC):

    “36. In the context of the matter before his Honour [Hayne J], I do not read his Honour as suggesting that the identification of an area of lesser risk in a country, that is, lesser than a real chance, is required to be identified by a delegate with any particular degree of precision, before applying the principle of relocation. As I understand the authorities, what is needed is that the decision-maker must be satisfied that the real chance of persecution facing the applicant if he returned to his country of nationality would be localised to a particular area, so as to allow a geographic distinction in relation to other areas presenting only a lesser risk of the feared persecution. I do not consider that Hayne J intended to suggest that any particular precision is needed in all cases when defining the geographic areas of a localised real chance of persecution, nor when defining the areas of lesser or no risk.

    37. I therefore do not accept that the present Tribunal, having identified the area of heightened risk amounting to a real chance of Convention-related persecution facing the present applicant as being ‘Quetta and Baluchistan,’ was bound to identify with more precision the areas where it envisaged that the applicant could relocate so as not to incur a real chance of persecution for Convention reasons in Pakistan.”

13. In M13 (at [21]), the delegate’s reference to where the plaintiff could relocate to was expressed in vague terms not immediately referable to the circumstances presented. I respectfully understood the reasoning to derive from the majority in SZATV at [24] per Gummow, Hayne and Crennan JJ, that:

    “… 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.”

    [Emphasis added.]

14. In the current case, the applicant’s personal circumstances were considered in this way. I agree with Ms Baggett that in the current case the Tribunal had considered specific localities where Sikh/DSS clashes had occurred, and the years in which they had occurred (see [67] – [68] at CB 162).

15. The applicant’s claim was that as a member of the DSS, he feared persecutory harm from Sikhs. His objection to relocation was that Sikhs were everywhere in India, and that therefore he was unable to internally relocate. The Tribunal understood this ([66] at CB 162).

16. In context, and when read as a whole, the Tribunals reasoning was that given the named localities where such clashes had occurred in the past, the evidence before it which suggested there had been no recent clashes and, the absence of evidence of any clashes outside those named areas, it was reasonable for the applicant to relocate to any other area, other than those named at having been the scenes of clashes in the past (including his local area).

17. In this way, the Tribunal did give geographical specificity to where the applicant could relocate to avoid persecutory harm. The Tribunal’s reasons were specific in this regard, and with regard to the applicant’s circumstances as a whole. No error is revealed here.

18. I should also note that on what is before me now, the Tribunal dealt with all of the applicant’s objections to relocation as presented (see at [57] at CB 160 and in addition to the above, at [73] – [74] at CB 163, see also SZMCD).

19. The applicant’s complaints, as expressed orally before the Court, do not reveal jurisdictional error in the Tribunal’s decision. Nor for that matter do the grounds of the amended application.

Ground One

1. Ground one complains that the Tribunal was in breach of s.424A of the Act as it did not send to him for comment, in writing, as required by the majority judgment in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294; (2005) 215 ALR 162 (“SAAP”), its intention to dismiss the application. In other words, to invite comment upon its reasoning leading to the affirmation of the delegate’s decision.

2. It is the case that in SAAP it was held that where the Tribunal considered that there was information which would be the reason, or part of the reason, for affirming the delegate’s decision, it was compelled by s.424A(1) of the Act, subject to the exceptions in s.424A(3) of the Act, to write to the applicant and provide the opportunity for comment.

3. However, in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 (at [18]), and with reference to VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471, the High Court subsequently explained that “information” for the purposes of s.424A(1) of the Act did not extend to the Tribunal’s thought processes, subjective appraisals, or the Tribunal’s adverse conclusions on the applicant’s evidence.

4. In this light, s.424A(1) of the Act was not enlivened in the current case. There was no obligation on the Tribunal in these circumstances to expose a draft “adverse” decision record to the applicants to fulfil any such obligation, as is contended by the applicant now.

Ground Two

1. Ground two, in the circumstances of this case, does not reveal any clear assertion of legal, let alone jurisdictional, error on the part of the Tribunal.

2. If this is a complaint about the Tribunal’s finding that the applicant could reasonably relocate, as the Minister reads it, then the Tribunal did address the reasonableness and practicality of relocation for the applicants. As set out above, the Tribunal’s approach was consistent with what was relevantly said in Randhawa, SZATV and SZMCD.

3. The Tribunal specifically addressed the question of whether the applicant, as a DSS member in India, was at risk of harm if he were to relocate to a part of India away from his local area. The applicant’s complaint now is simply a challenge to the Tribunal’s finding, open to it on what was before it, that the applicants could reasonably relocate in these circumstances.

4. It is not clear whether the applicant also seeks to complain that the Tribunal should have considered the question of whether adequate state protection was available to him.

5. The Tribunal’s finding that it would be reasonable for the applicant to relocate, in light of country information before it, and that he would not face harm in the other parts of India, made any such specific consideration unnecessary.

6. Nor was the Tribunal compelled to consider the issue of state protection as it related to its finding of the real chance of persecutory harm if he was to return to his home area. The finding as to relocation, without any attendant legal error, makes any such exercise unnecessary.

7. The ground also states that the Tribunal failed to consider an integer of his claims, being the risk from radical Sikhs because of past harm. This appears to be a complaint that although it found that his house had been attacked in the past (January 2009) by radical Sikhs, the Tribunal still found he would not be at risk from them if he were to return to India.

8. This is yet another example of the difficulties that arise from the way the Tribunal chose to approach this application, and how it chose to present its analysis. It is understandable in all the circumstances (with reference to the “history” of his application) that the applicant was confused as to how the Tribunal arrived at its conclusion.

9. However, for the reasons already set out above, it must be accepted that the Tribunal did consider this aspect of the applicant’s claims, both as it related to his local area, and to India as a whole.

10. In relation to his local area, it accepted that this, and other claims, led to a finding that this treatment amounted to “serious harm” for the purposes of s.91R(1) of the Act ([63] at CB 161).

11. In relation to other parts of India however, the Tribunal found that there was no real chance he would suffer such harm from Sikhs or anyone else ([72] at CB 163). This was open to the Tribunal as is referred to elsewhere in this judgment.

12. In all, therefore, no legal error arises from ground two.

Conclusion

1. I should note that the second and third applicants made no claims to fear persecutory harm in their own right. As his family members, their claims to protection visas rise or fall with the applicant ([76] at CB 164).

2. I cannot discern jurisdictional error in the Tribunal’s decision. It is appropriate therefore that the application to the Court be dismissed. I will make an order accordingly.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  20 January 2012