SZOSF v Minister for Immigration
[2011] FMCA 204
•1 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOSF v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 204 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal used the wrong country information and gave incorrect weight to the country information relied on, breached s.424A of the Migration Act 1958, failed to consider an integer of the applicant’s claims, constructively failed to exercise its jurisdiction by failing to consider all the evidence before it, failed to investigate the applicant’s claims and was biased, reached a conclusion which was illogical and relied on inaccurate translation services at its third hearing. |
| Migration Act 1958, ss.424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Citizenship v SZJSS (2010) 85 ALJR 306 Minister for Immigration & Citizenship v Khadgi [2010] FCAFC 145 Khan v Minister for Immigration & Citizenship [2011] FCAFC 21 Minister for Immigration & Citizenship v SZNSP (2010) 184 FCR 485 Re Minister for Immigration & Multicultural Affairs; Ex parte S20/2002 (2003) 77 ALJR 1165 Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 SZMSA v Minister for Immigration & Citizenship [2010] FCA 345 Minister for Immigration & Citizenship v SZNVW 183 FCR 575 WALN v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 131 |
| Applicant: | SZOSF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2305 of 2010 |
| Judgment of: | Cameron FM |
| Hearing dates: | 1 February 2011, 15 March 2011 |
| Date of Last Submission: | 15 March 2011 |
| Delivered at: | Sydney |
| Delivered on: | 1 April 2011 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Mr B.D Kaplan |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application be dismissed
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2305 of 2010
| SZOSF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India where, he claims, he was an active member of the Congress Party and an affiliated group. He claims that as a result of his involvement in the Congress Party he was targeted by members of the Communist Party. He claims that he was also targeted because of his Christianity.
The applicant claims to fear persecution in India because of his religion and his political opinion.
After his arrival in Australia in July 2008, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 10 November 2008. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 17 of the Tribunal’s decision. Relevant factual allegations are summarised below.
Protection visa application
The applicant made the following claims in a statement accompanying his application:
a)he was a “frontline worker” for the Kerala Students Union (“KSU”) while at college. The KSU was a student wing of the Congress Party;
b)he was a candidate in the 1999 college elections and, as a result, was attacked by workers of the Students Federation of India (“SFI”), the Communist Party’s student wing. His leg was severely injured in the attack and he spent eleven days in hospital before being “laid up” for a further three months. His opponents threatened to kill him and members of his family if he reported the matter to the police and he could not do anything legally as the Communist Party was in power at the time. He was forced to leave Kerala and went to Chennai for six months;
c)a large number of “criminals” in Thumba, his home area, owe “allegiance” to the Communist Party. In 2001 the criminals attacked the police and on 28 December 2001 the police retaliated by opening fire in the Thumba area, killing a man named Varghese. Unable to live in Thumba peacefully, the applicant decided to move to Mumbai. However, he was forced to return to Kerala in 2004 because the Shiv Sena Party were harassing non-locals;
d)there was an incident in Thumba in January 2005 in which a Hindu person lost his life. He was “unable to move out from Thumba” after this incident;
e)Christians cannot lead a peaceful life in India because Hindus are in the majority; and
f)he was a full-time worker for the Kerala Catholic Youth Movement (“KCYM”) and, as such, was able to come to Australia for World Youth Day.
The applicant attended hearings before the Tribunal on 3 February 2009, 28 October 2009 and 23 August 2010.
At the hearing on 3 February 2009 the applicant further claimed that:
a)when he returned to Kerala from Chennai in 2001, the SFI threatened him. However, after this incident there had been other problems with the SFI and at election time “they would bring up this problem against him”;
b)in 2005 a religious clash broke out between Thumba and Menamkulam and a Hindu person was killed. Christians were unable to go out after this incident as Hindus in the area were threatening and attacking them;
c)there are continuous problems between Christians and Hindus in India and his life would be threatened by the SFI and Hindu extremists were he to return. Further, because the Communist Party was in government and the SFI was against him, “all the government” was therefore against him. The Communist Party also supported the Hindus and controlled the police;
d)in August 2008, after he had left India, SFI members came to his house and “created a problem for his household”. They told his wife that they would not leave him alive if he returned.
At the hearing on 28 October 2009 the applicant also claimed that he was a member of the United Democratic Front (“UDF”), a coalition led by the Congress Party. He claimed that he joined the UDF while in college and actively worked for them during elections. He claimed that, because of his involvement in that organisation, he feared persecution from the Left Democratic Front (“LDF”), which was led by the Communist Party. He claimed that the LDF continue to seek revenge. He also claimed that the incident in which the SFI threatened his family had occurred in January 2009. At the hearing the Tribunal also took evidence from the applicant’s wife in India who corroborated aspects of his claims.
At the hearing on 23 August 2010 the applicant made a number of additional claims, including the following:
a)one of his KSU colleagues was killed by Communist Party activists some ten years earlier. Had the applicant not been in Tamil Nadu at the time, he too would have been killed;
b)he became an active member of the Congress Party after leaving college. This was why the Communists were against him;
c)Varghese, the man who was killed by the police in 2001, had in fact been his uncle. The applicant was present when his uncle was shot but managed to save himself. His family cannot survive in India under these conditions; and
d)he remained in Kerala from 2004 until his departure from India in July 2008. During this time he was always with his colleagues and party members and so his opponents did not have a chance to find him alone.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal accepted as true the original claims made by the applicant in the statement accompanying his protection visa application but found that he had embellished those claims in significant respects;
b)the Tribunal did not accept the applicant’s claim that Christians in India were unable to lead a peaceful life, noting, amongst other things, that:
i)according to country information, the BJP has very little support in Kerala;
ii)according to information obtained from the Department of Foreign Affairs & Trade (“DFAT”), the Christian community in Kerala is relatively safer than in other states as they constitute around nineteen percent of the population and are economically well placed, the police in Kerala have been effective in tackling the isolated instances of violence against Christians throughout the state, and the BJP and other Hindu extremist groups in Kerala have been weakened over the past few years with the result that there is no serious threat to the religious freedom of Christians; and
iii)when the applicant came to Australia he left his pregnant wife in India who, since giving birth, has continued to live in their home area. In the Tribunal’s view, this did not suggest that Christians such as the applicant had problems in his home area as claimed;
c)the Tribunal did not accept that the applicant would be persecuted by the BJP or Hindu extremists because of his religion as a Catholic or because of his involvement in the KCYM, noting in this respect that he continued to live in the same area from 2004 until his departure from India in July 2008 and, further, had left his pregnant wife in their home area when he came to Australia. The Tribunal did not accept that Christians in Thumba were prevented by Hindus from leaving the area following the January 2005 incident in which a Hindu lost his life and it did not accept that there was a real chance that the applicant would be prevented, for reasons of his religion, from living a peaceful life in his home area or from again obtaining employment in the construction industry;
d)the Tribunal did not accept that the applicant would be persecuted by members of the Communist Party or the SFI because of his involvement in the KSU some ten years earlier, noting that:
i)as before, he continued to live in the same area from 2004 until his departure from India in July 2008;
ii)he gave inconsistent evidence about whether or not he had any problems with the SFI after 2001;
iii)at the second hearing he claimed for the first time that he had worked for the UDF at elections and was threatened by Communists and the SFI as a result. In the Tribunal’s view, the applicant would have mentioned these claims in the statement accompanying his protection visa application had they been true;
e)the Tribunal did not accept the applicant’s later-made claim concerning the death of his KSU colleague or the claim that Varghese was his uncle. The Tribunal regarded these claims as an embellishment of the applicant’s original claims noting that, had they been important, the applicant would have mentioned them in the statement accompanying his original application; and
f)having considered the totality of the applicant’s circumstances, the Tribunal did not accept on the available evidence that there was a real chance that the applicant would be persecuted for reasons of his religion or political opinion were he to return to India.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1.The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weight against my case in the final outcome. The Tribunal used the all information for matter of reasoning and evaluation of my case for protection visa.
2.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 s.424A as decided by the majority Judge of the High Court in SAAP.
3.The Tribunal failed to consider an integer of the applicant’s claims, in failing to consider whether or not a Catholic faith in India was at risk of harm from radical Hindus, and not able to access effective protection whilst the Tribunal formed the view that the applicant was a credible witness.
4.The Tribunal constructively failed to exercise its jurisdiction.
In his affidavit filed on 25 October 2010 the applicant also asserted that the Tribunal had failed to investigate his claims and that therefore its decision was affected by actual bias.
In his written submissions filed on 17 January 2011 the applicant raised two further matters, namely:
a)the Tribunal’s conclusion that the applicant did not face a real chance of persecution were he to return to Kerala was illogical; and
b)the Tribunal “failed to consider an integer of my claims, in failing to consider whether or not a Christian minority with liberal political background (regardless of my specific claims of affiliation or past persecution) in India was at risk of harm from radical Hindus and political parties and not able to access effective protection”.
At the first hearing day in this proceeding the applicant submitted that the interpreter services provided to him at the third Tribunal hearing day were inadequate. An adjournment was granted to permit the applicant to adduce evidence on this issue, orders being made that the applicant was to file an amended application and any affidavits annexing or exhibiting the transcript of the Tribunal hearing by 1 March 2011.
Allegations in application
Country information
The first ground of the application appears to allege that the Tribunal did not rely on country information identified or specified by the applicant but preferred to use other information which it gathered for itself. Whether or not this is so, the choice of the country information relied upon by the Tribunal in reaching its decision, together with the weight which is accorded to such information, is a matter solely for the Tribunal. Subject to the consideration later in these reasons of the applicant’s allegation of bias, the Tribunal’s choice of and allocation of weight to country information when reaching its decision is not reviewable by the Court.
Breach of s.424A
The essence of the second allegation made in the application is that the Tribunal had a duty to notify the applicant of the country information which would have been the reason or part of the reason for affirming the delegate’s decision. Section 424A relevantly provides:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
…
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; …
As s.424A(3)(a) makes clear, the obligation found in s.424A(1) does not apply to country information. Consequently, the second ground of the application discloses no basis upon which the Tribunal’s decision should be set aside.
Tribunal failed to consider an integer of the applicant’s claims
The third ground of the application asserts that the Tribunal failed to consider whether or not a Catholic person in India would be at risk of harm from radical Hindus and unable to access effective state protection.
At the outset it should be noted that this allegation does not reflect the essential task which was before the Tribunal. Its task was not to embark on a general inquiry into the position of Catholics in India but, relevantly, to consider the applicant’s particular claims to fear persecution in Kerala because of his religion. Nevertheless at para.86 of its reasons the Tribunal stated that it was unable to accept the applicant’s more general allegation that Christians are unable to lead a peaceful life in India, noting that the BJP had not won the general election in India in 2009. It then proceeded to further explain its reasons for that finding and its reasons for the conclusion expressed at para.89 of its reasons that it did not accept that there was a real chance that the applicant would be persecuted by the BJP or Hindu extremists for reasons of his religion as a Catholic or his involvement in the KYCM were he to return to Kerala. It considered the level of support for the BJP in Kerala, the size of the Christian population in Kerala and their economic situation, the weakness of the BJP and Hindu extremist groups in Kerala and the effectiveness of the action taken by Kerala’s authorities in tackling incidents of violence against Christians. Plainly, the Tribunal considered the applicant’s allegations based on his religion.
On the question of the availability of state protection, the Tribunal addressed this in general terms in its reasons, noting that the police in Kerala had been effective in tackling the isolated instances of violence against Christians in that state. This observation followed the Tribunal having put to the applicant, as recorded at para.68 of the decision, that DFAT had advised that Kerala was a law-abiding state where legal recourse was available to those who felt threatened and persecuted. The Tribunal did not make a specific finding that state protection would be effectively available to the applicant were he to have sought it but such a finding was unnecessary because of its finding, partly because of the general effectiveness of the police in Kerala, that it did not accept that there was real chance that the applicant would be persecuted by the BJP or Hindu extremists for reasons of his Catholicism or his involvement in the KCYM were he to return to Kerala.
For these reasons, the third ground alleged in the application does not disclose jurisdictional error on the Tribunal’s part.
Constructive failure to exercise jurisdiction
The allegation that the Tribunal constructively failed to exercise its jurisdiction was particularised as follows:
The applicant provided news paper articles to the Tribunal to corroborated his claims. The Tribunal failed to engage in an active intellectual process in respect of those documents. The Tribunal ultimately gave the documents no weight on the bass of its credit findings. It was an error for the Tribunal to assess the Applicant’s credit without first assessing whether the substances of the documents corroborated his claims.
The applicant produced several newspaper articles during the course of his visa application and review process and these are referred to at paras.45, 52, 69, 72 and 96 of the Tribunal’s decision. From these passages it is clear that the Tribunal had regard to the information which the applicant provided and did so in the context of the claims he made and arguments he advanced. In doing so, the Tribunal discharged its obligation to the applicant to consider the evidence which he provided to it. The applicant’s assertion that the Tribunal failed to engage in an active intellectual process in connection with the press reports which he submitted suggests not a lack of consideration, but a lack of favourable consideration of those documents. In circumstances where the Tribunal did consider the documents, and did so in the context of the claims made and arguments advanced by the applicant, the fact that it did not accord them the weight which the applicant would have wished does not support a finding of jurisdictional error: Minister for Immigration & Citizenship v SZJSS (2010) 85 ALJR 306; Minister for Immigration & Citizenship v Khadgi [2010] FCAFC 145; Khan v Minister for Immigration & Citizenship [2011] FCAFC 21.
The applicant’s allegation that the weight given to the documents submitted by him in support of his claims was affected by the Tribunal’s findings as to his credibility misunderstands the Tribunal’s reasoning. On 3 March 2009, after the first Tribunal hearing, the applicant produced, amongst other things, press reports in relation to the incident in 2001 in which a man called Varghese was killed as well as press reports in relation to anti-Christian violence in India, although not specifically in relation to Kerala. At para.85 of its decision, the Tribunal referred to these documents and, based on the numerous press reports in relation to the occurrence in December 2001, accepted that that incident had occurred and that a man named Varghese had been killed. On 13 November 2009, after the second Tribunal hearing, the applicant submitted more press reports which he said related to the political and terrorist problems in India. At para.69 of its decision, the Tribunal described these documents as:
… a random series of articles downloaded from the Internet dealing with a variety of different issues. I noted that one of them referred to the recruiting of terrorists in Kerala (see folios 90 to 92 of the Tribunal’s file) but that there was nothing in the information available to me to suggest that there was a real chance that he would be the victim of a terrorist attack if he returned to his home in Kerala.
Amongst the documents submitted on 13 November 2009 were ones regarding violence on college campuses and at para.72 the Tribunal records that it told the applicant that it was difficult to see the relevance of those documents to his situation given that he had not been at college for over ten years. In relation to other documents, such as a press report referring to terrorists being recruited in Kerala and other material relating to violence between the BJP and the Communist Party in Kannur, a district of Kerala, the Tribunal, in essence, concluded that the information they contained was not relevant to the applicant’s claim.
But, in any event, the Tribunal does not err by making an assessment of an applicant’s credibility before determining the weight to be given to evidence alleged to be corroborative of that applicant’s claims, as long as that evidence is considered: Minister for Immigration & Citizenship v SZNSP (2010) 184 FCR 485; Re Minister for Immigration & Multicultural Affairs; Ex parte S20/2002 (2003) 77 ALJR 1165. The Tribunal did consider the allegedly corroborative evidence and so discharged its obligation in that respect to the applicant.
Affidavit filed on 25 October 2010
Bias
In the second paragraph of his affidavit filed on 25 October 2010 in support of the initiating application, the applicant asserted that the Tribunal had:
… failed to investigate my claims, specially the ground of persecution in India. Therefore, the Tribunal decision was effected by actual bias constituting judicial [sic] error.
The Tribunal has no general duty to make inquiries although in certain circumstances a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, might supply a sufficient link to the outcome of the Tribunal’s review to constitute a failure to review: Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123. Such circumstances do not exist in this case and the applicant has not submitted that they do. Nor is it apparent that the applicant invited the Tribunal to undertake inquiries in relation to his review application. That is to say, the Tribunal was neither requested, nor had a duty, to make inquiries. To make out an allegation of actual bias it would be necessary to demonstrate that the Tribunal was so committed to a conclusion already formed as to be incapable of altering its view, whatever evidence or arguments might have been presented: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. Bias of that sort is not demonstrated by the Tribunal not doing something it was neither obliged nor requested to do.
Applicant’s written submissions filed on 17 January 2011
In support of his assertion that the Tribunal’s conclusion that he did not face a real chance of persecution were he to return to Kerala was illogical, the applicant submitted that the Tribunal failed to “weigh properly” the effect of the following matters:
a)he was an active member of the KCYM;
b)he had been an active member of the KSU while he was studying in college;
c)the student wing of the Communist Party had physically attacked him; and
d)subsequently, the Communist Party had threatened his family and continued to do so.
The Tribunal accepted that the applicant had been involved in the KSU and the KCYM. It also accepted that workers from the SFI had attacked him, although it did not accept his claims to have received threats from the Communists or the SFI on subsequent occasions. The submission that the Tribunal failed to weigh properly the effect of the matters listed above is significantly weakened because the Tribunal did not accept the truthfulness of the last of them. But in any event, what the applicant really complains of is the factual conclusion which the Tribunal reached on the evidence which was before it. As the conclusion was one which was open to the Tribunal on that evidence, the submission does not demonstrate jurisdictional error on the Tribunal’s part.
The second allegation made in the applicant’s written submissions of 17 January 2011 implies that the applicant’s membership of a particular social group which was exposed to persecution by reason of its defining characteristics, in this case Christianity and liberal political views, gave rise to a well-founded fear of persecution for a Convention reason. Although the Tribunal did not expressly consider the applicant’s claims in terms of his possible membership of a particular social group, its findings concerning the objective basis for his claim to fear persecution in Kerala by reasons of his Christianity would apply to the postulated particular social group just as well as it applied to the applicant. To that extent, the claim was considered.
But nothing in the evidence to which the Court has been taken suggests that the applicant advanced a claim which was based on his membership of a particular social group which had, as a defining characteristic, liberal political views. Nor does the evidence suggest that such a claim was or would have been reasonably apparent to the Tribunal. For this reason, the second allegation made by the applicant in his affidavit filed on 17 January 2011 does not disclose a failure by the Tribunal to consider a claim he made to it.
Interpreter at third Tribunal hearing
Notwithstanding the orders made by the Court on the first day of hearing, the applicant failed to amend his application to allege jurisdictional error by reason of poor translation services at the third Tribunal hearing. He also failed to adduce any evidence of what occurred at the Tribunal hearing, whether in the form of a transcript or a sound recording, or any expert evidence dealing with the quality of the interpreter services at that hearing. As a result, there is no evidentiary basis to conclude that the interpreter services provided at the Tribunal hearing were inadequate as the applicant claimed.
However, on 1 March 2011 the applicant did file written submissions in which he raised the issue of the quality of the interpreter services at the third Tribunal hearing. In those written submissions the applicant said that at a time point between “30.30” and “30.40” the interpreter had confused a reference with the SFI with the KSU and had said that the KSU had threatened him when, in fact, the opposite was the case. He also said that between “53.30” and “53.40” the presiding Tribunal member had said that:
Kerala is economicall well place [sic]
but the interpreter said:
He knows all things about that.
The applicant said that the interpreter had incorrectly translated what the Tribunal member had said to him. He also submitted that the interpreter had omitted “many essencial [sic] words” and had “given wrong ideas to the RRT member” but did not specify examples of this.
Even if the two particular matters specified in the applicant’s submissions were substantiated by the evidence, that would not be enough to make out this allegation which is, in essence, an allegation that the Tribunal failed to discharge its obligations under s.425 of the Act. To demonstrate jurisdictional error of that sort, an applicant must demonstrate that he or she was denied a meaningful opportunity to give evidence or present arguments at the Tribunal hearing: SZMSA v Minister for Immigration & Citizenship [2010] FCA 345; Minister for Immigration & Citizenship v SZNVW 183 FCR 575. When the allegation is one of inadequacies in translation, an applicant must establish that he or she was effectively prevented from giving his or her evidence or that translation errors occurred which were so material that they caused the decision-making process to miscarry: WALN v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 131 at [29]. The matters raised by the applicant in his submissions do not satisfy these tests. The Tribunal’s summary of the evidence at its third hearing discloses no confusion on the Tribunal’s part about the roles which the KSU and the SFI played in the applicant’s claims. It clearly recognised that the applicant claimed to have been a member of the KSU, indeed it subsequently accepted this to be the fact, and also that he claimed that members of the SFI had attacked and intimidated him. Even were the interpreter at the third Tribunal hearing to have made the mistake which the applicant attributes to him, and the Tribunal’s summary of the evidence at the third hearing suggests that he did not, it is clear that it did not affect the Tribunal’s understanding of the claims which the applicant made.
The applicant’s allegation concerning the translation of the Tribunal’s statement that “Kerala is economicall well place [sic]” refers to that part of the Tribunal’s hearing summarised at para.77 of its decision where the Tribunal records that, amongst other things, it put to the applicant that:
… the Christian community in Kerala was relatively safer than in other states as they constituted around 19 per cent of the population and were economically well-placed.
The detail to which the applicant refers was only one of several cited by the Tribunal as grounds for its ultimate conclusion that the applicant did not have well-founded fear of persecution in Kerala by reason of his Christianity. Indeed, it was a matter of comparatively little significance in light of the other information relevant to that issue, namely, the proportion of the population in Kerala which is Christian, the weakened position of the BJP and other Hindu extremist groups, the effectiveness of the Kerala police in tackling isolated incidents of violence against Christians, the freedom with which Christian groups held meetings and functions and the fact that the applicant was prepared to leave his wife and child behind in Kerala when he came to Australia. Consequently, even if the interpreter had mistranslated the phrase in question, it could not be said that this deficiency was so material that it caused the decision-making process to miscarry.
Written submissions filed on 1 March 2011 – other issues
In his written submissions filed on 1 March 2011 the applicant also made lengthy submissions addressed to the merits of his visa application. However, the Court is not empowered to review the Tribunal’s decision on the merits of his application, its role being limited to ensuring that the Tribunal applied proper processes and properly applied the law when reaching its decision.
In his written submissions of 1 March 2011 the applicant also said that the Tribunal:
… failed to analyse properly the ‘future harm’ that I may face if I have to return back to India.
This submission is directed to the Tribunal’s conclusion that it did not accept that the was a real chance that the applicant would be persecuted for reasons of his religion or his real or imputed political opinion were he to return to his home in Kerala. This was a factual finding open to the Tribunal on the evidence before it and not one which the Court may review.
Conclusion
For these reasons, jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 1 April 2011
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