SZOTW v Minister for Immigration
[2011] FMCA 293
•7 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOTW v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 293 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.36, 424AA, 424A, 425 |
| Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 Minister for Immigration and Citizenship v SZJSS (2010) 85 ALJR 306 ; [2010] HCA 48 Minister for Immigration and Citizenship v SZNVW and Another (2010) 183 FCR 575; [2010] FCAFC 41 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 SZGXK v Minister for Immigration and Citizenship [2008] FCA 1891 SZMWQ v Minister for Immigration and Citizenship and Another (2010) 187 FCR 109; [2010] FCAFC 97 |
| Applicant: | SZOTW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2467 of 2010 |
| Judgment of: | Barnes FM |
| Hearing date: | 7 April 2011 |
| Delivered at: | Sydney |
| Delivered on: | 7 April 2011 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $5,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2467 of 2010
| SZOTW |
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 Refuge Review Tribunal dated 22 October 2010. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant, a citizen of Nepal, arrived in Australia in August 2009 and applied for a protection visa in April 2010. He claimed to fear harm by Maoists and other political party members because of his political opinion as a member of the Rastriya Prajatantra Party (the RPP) and his support for the Nepalese monarchy.
He made his claims in a statutory declaration accompanying his protection visa application. He attended a Departmental interview. His application was refused by the delegate, who found that he was not a witness of truth and that material aspects of his claims were fabricated. The applicant sought review by the Tribunal and attended a Tribunal hearing. It is apparent from the Tribunal’s account of what occurred at the hearing, which is the only evidence before the court of the hearing, that it gave the applicant the opportunity to give evidence and present arguments, raised certain matters of concern with him and put information to him for his comment.
In its reasons for decision the Tribunal set out in detail the applicant’s claims made in connection with his protection visa application, his evidence at the Departmental interview and other evidence provided to the Department and a similarly detailed account of what occurred at the Tribunal hearing.
In its findings and reasons, the Tribunal, in effect, rejected the applicant’s claims as false. It had regard to the fact that, as it had put to the applicant, the statutory declaration accompanying his protection visa application was in significant parts in identical terms (subject to alterations to reflect the applicant’s personal circumstances) to a statutory declaration that had been submitted by another applicant for a protection visa some three months earlier.
These documents (referred to as attachment A and attachment B) with the identifying details of the other protection visa applicant deleted were attached to the Tribunal decision. Those parts which are in identical terms were highlighted in bold on the copy of the applicant’s declaration made in connection with his protection visa application. The Tribunal found that, as it put to the applicant, this suggested that both documents had a common origin and that the claims made by the applicant in his statutory declaration were not in fact his claims.
The Tribunal set out and considered the applicant’s responses at the hearing when this information was put to him, including his suggestion that his situation was quite common and that he was telling the truth. The Tribunal accepted that there were no doubt many lower level members of political parties in Nepal, but had regard to the fact that one aspect common to both statutory declarations related to the claim that he was walking to the capital city of his district to visit senior members of the RPP when he was approached by the Maoists. The Tribunal recorded that the applicant reiterated that his statutory declaration was true and reflected his situation, but having regard to the extent of the similarities between the two declarations, the Tribunal did not accept that this was the case, finding that the applicant’s claims were copied from another document and were not true.
The Tribunal also had regard to the fact that, as it had put to the applicant, he had said at the Departmental interview that the RPP had won 43 or possibly more than 43 seats at the election in April 2008 and had won one of the two seats in the applicant’s district.
The Tribunal accepted that at the time of the Tribunal hearing the applicant knew that those answers were not correct and at the hearing had said correctly that the RPP (the party to which he claimed he belonged) had won only four seats in the Constituent Assembly and had not won any of the seats in his local district. However the Tribunal found that what the applicant had said at interview with the delegate cast doubt on whether he was in fact involved in the RPP in Nepal.
The Tribunal considered the applicant’s explanations for these errors but did not accept that he was confused about which election he was talking about, having regard to the context in which he made those claims. It also had regard to the applicant’s claim that he had not been in a good state of mind, was nervous and under a lot of stress at the time of the Departmental interview. However, taking these explanations into account, the Tribunal nonetheless found that the applicant’s claims at the Departmental interview supported the conclusion that he was not telling the truth in his claims. It gave greater weight to these problems with his evidence than it did to the letter he produced saying he was a member of the RPP in Nepal.
Further, the Tribunal did not accept the applicant’s claim that he perceived the monarch of Nepal “as a lord, having spiritual and temporal authority to protect the sacredness of the universe of Nepal” (as he had said in one of the passages in his statutory declaration identical to that of the other protection visa applicant). Nor did it accept that, as the applicant said at the Tribunal hearing, he “had the feeling that the king was like the father of the country”.
The Tribunal did not accept that the applicant was a member of the RPP, that he was threatened by Maoists or members of other political parties because of his involvement with the RPP or because of his support for the monarchy.
The Tribunal accepted that the applicant had a scar on his chin, but did not accept he suffered this injury when hit by Maoists when he was still at school in 2001 because he shaved his head after the then King died. Nor did it accept that the applicant’s father, who remained in their home village, was a member of the RPP or chairman of an RPP committee in the village. It did not accept that the applicant joined the RPP in 2005 or that he was the chairman of the youth committee in the village as claimed. Nor did it accept his claims about Maoist threats, singling out his family, taking away their livestock and physically abusing them or that the applicant was kidnapped by Maoists in July 2008 as claimed.
The Tribunal did not accept that there was a real chance that if the applicant returned to his home in Nepal now or in the reasonably foreseeable future he would voice political views in support of the monarchy and the RPP and in opposition to the Maoists. It did not accept there was a real chance he would be threatened, abused, assaulted or killed by Maoists or members of other political parties or the community at large for reason of his real or imputed political opinion in support of the RPP, Nepal or the monarchy or on the basis of his membership of a particular social group consisting of his family (based on his connection with his father.)
The Tribunal went on to state in the alternative that even if it were to accept there was a real chance the applicant would be persecuted if he returned to Nepal (which it did not), it would find that as a Nepalese citizen the applicant had the right to enter and reside in India. It had regard to country information in finding that the applicant, as a citizen of Nepal, in possession of a valid Nepalese passport, had a right to enter and reside in India for the purposes of s.36(3) of the Migration Act 1958 (Cth) (the Act). Such evidence was said to indicate that Nepalese citizens could enter India and could live and work freely in India.
The Tribunal addressed the concerns raised by the applicant that he could not go and live in India because he could not speak Hindi, did not have family and friends there, would not be able to find any employment, as well as his claims about India having a large population, a lot of criminal activity, the risk that Nepalese persons faced in India, the possibility that Maoists would come and get him there. It observed that he subsequently denied that he would be troubled by the Maoists in India but claimed he would be taken to be a Maoist who had come to India to get arms and ammunition.
The Tribunal had regard to country information it had put to the applicant about the very large number of Nepalese nationals resident in India. It did not accept that Nepalese nationals in India were treated as Maoists and found that there was nothing in the independent evidence to suggest that the Nepalese residents living in India were at risk of being persecuted by Maoists in India. It referred to independent country information which did not support the view that there was discrimination against Nepalese residents, such that they were not practically able to exercise their rights under the treaty between India and Nepal. The Tribunal accepted this advice and on that basis did not accept that there was a real chance the applicant would be discriminated against in relation to employment in India for reasons of his Nepalese nationality in such a way or to such an extent that he would not be practically able to exercise the right to live and work freely in India.
The Tribunal also addressed ss.36(4) and 36(5) of the Act. Having regard to country information, it did not accept that the applicant had a well-founded fear of being persecuted in India for a Convention reason or that India would return him to Nepal.
The Tribunal reiterated that even if it were to accept, which it did not, that there was a real chance the applicant would be persecuted if he returned to Nepal, it would find that he had not taken all possible steps to avail himself of a right to enter and reside in India and that Australia was therefore taken not to have protection obligations to him in accordance with s.36(3) of the Migration Act. The Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
The applicant filed an application for review of the Tribunal Decision on 12 November 2010 and an accompanying affidavit. There are four grounds in the application. The matters raised in his affidavit of 12 November 2010 are more in the nature of submissions and apparent additional grounds. He did not file written submissions or any further affidavit evidence. The applicant was given the opportunity to elaborate on his grounds in his oral submissions.
I have considered the grounds in the application, the matters in the affidavit (insofar as additional grounds can be discerned from that document) and also the matters raised by the applicant in oral submissions today.
It is convenient to consider first the grounds in the application. The first ground in the application is that the Tribunal asked the wrong questions and failed to consider the applicant’s claims and that it did not use all the means at its disposal “to produce the substantial evidence in terms of [the applicant’s] fear on return to Nepal”. The applicant believes that the Tribunal did not act in good faith in his case.
Insofar as the applicant refers to the Tribunal asking the wrong questions and failing to consider his claims, he did not elaborate on this concern other than as emerges in the subsequent grounds in the application. I will consider those grounds when I come to them but, generally, there is nothing in the material before the court to establish that the Tribunal asked the wrong questions or failed to consider any integers of the applicant’s claims in a manner constituting jurisdictional error.
The Tribunal decision is based upon two separate and independent findings. First, it rejected all of the applicant’s material claims. Secondly, it found that the applicant had a legally enforceable right to enter and reside in India within the meaning of s.36(3) of the Act which provides that:
Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
The applicant’s claims were considered by the Tribunal. They were rejected, but the Tribunal nonetheless went on to consider the possible application of s.36(3), a matter it also raised with the applicant at the Tribunal hearing. I note for the sake of completeness, although this was not a matter raised by the applicant expressly, that there is nothing in the material before the court to suggest that the Tribunal made any error of law in its consideration of s.36(3) and also ss.36(4) and (5) of the Act.
As the first respondent submitted, in considering whether the applicant, as a citizen of Nepal, had a legally enforceable right to enter and reside in India, the Tribunal had regard not only to the 1950 Treaty of Peace and Friendship between India and Nepal but also to independent country information concerning the implementation of the Treaty. (See generally, SZGXK v Minister for Immigration and Citizenship [2008] FCA 1891 and, in particular, the discussion of the judges of the Full Court of Federal Court in SZMWQ v Minister for Immigration and Citizenship and Another (2010) 187 FCR 109; [2010] FCAFC 97).
In addressing these issues the Tribunal addressed the concerns raised by the applicant. I note in relation to the matters the applicant raised about possible hardships of living in India, as Rares J stated in SZMWQ at [32] in relation to a well-founded fear of prosecution for a convention reason:
It is not sufficient that, by exercising such a right outside Australia, the person may suffer privation or be exposed to significant difficulties in maintaining a lifestyle, that do not arise for a Convention reason
(Also see SZMWQ at [36] and the general discussion by Flick J (with whom Besanko J agreed).
As their Honours acknowledged in SZMWQ an error as to the correct construction and application of s.36(3) could constitute a jurisdictional error. However there is nothing to indicate that there is an error of that nature. The Tribunal correctly turned its mind to ss.36(4) and (5) in its reasons for decision as set out above. Outside the limitations on s.36(3) that are imposed by ss.36(4) and (5), the Tribunal was under no obligation to assess the consequences for the applicant or the reasonableness of him residing in India. (See SZMWQ at [26] – [47], [82], [88] and [109]).
The specific issues raised in ground one are that the Tribunal did not use all its means to produce substantial evidence in terms of the applicant’s fear and that there was an absence of good faith.
As to the first of these issues, it is well-established that the Tribunal is not under an obligation to carry out an investigation or an inquiry, for example, to discover whether an applicant’s case might be better put or supported by other evidence.
It is for the applicant to put material in support of his case before the Tribunal. The Tribunal’s duty is a duty to review and not to inquire as such. As in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 (at [25]) this is not a case in which there is anything to suggest that a duty to inquire arose on the basis of there being critical information readily available.
Nor is it established that the Tribunal member did not act in good faith or, insofar as this is intended to be asserted, that either actual or apprehended bias is made out. (See Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28).
I note in particular that there is no requirement that a Tribunal uncritically accept an applicant’s evidence and that it is not required to have rebutting evidence before it to base a rejection of factual assertions of an applicant. The manner in which the Tribunal proceeded is not such as to give rise to an apprehension of bias from the perspective of the appropriately informed reasonable lay observer. Insofar as bias is intended to be alleged, such an allegation has not been distinctly made and it has not been made out.
The applicant suggested in oral submissions today that the Tribunal simply relied on the decision of the delegate. This may be taken to imply a suggestion of pre-judgment on the part of the Tribunal. There is, however, nothing to support such a claim. It was open to and proper for the Tribunal to raise with the applicant matters of concern about the interview that he had with the delegate.
Beyond this, it is apparent from the material before the court, in particular the Tribunal reasons for decision, that it carried out a de novo review in accordance with its obligations under the Act. It was open to the Tribunal to give weight to information that the applicant had provided to the delegate that was incorrect. This does not amount to relying on the decision of the delegate, a lack of fairness or a failure to carry out its review as seems to be contended by the applicant.
Ground one is not made out.
Ground two is that the Tribunal misconstrued the applicant’s claims that he had a fear of persecution on the basis of being a monarchist in Nepal. This is conveniently considered in conjunction with ground three, in which it is contended that the Tribunal failed to consider the applicant’s claim “in the sense of engaging in an active intellectual process in respect of separately dealing with [his] claims”.
In elaboration of this ground it is said that the Tribunal rejected the applicant’s claim on the basis that he was not a member of the RPP without comprehending that his claim to fear persecution by reason of being a monarchist was a separate basis on which he claimed to fear persecution and not simply an extension of his claim to belong to the RPP. It was submitted that the Tribunal had failed to consider the applicant’s claims based on his being a monarchist.
It has not been established either that the Tribunal misconstrued the applicant’s claims or that it failed to consider his claims. The Tribunal clearly understood that the applicant made claims based on being a member of the RPP and based on being a monarchist.
It considered, but expressly rejected, the applicant’s claim to be a monarchist or to have a well-founded fear of persecution on that basis. It is apparent from the Tribunal’s account of its questioning of the applicant at the hearing and also from its findings and reasons that the Tribunal appreciated that the applicant advanced his claim as a monarchist in addition to his claim to be a member of the RPP, a pro-monarchy political party.
In addition to the findings and reasons discussed above, I note that at the Tribunal hearing, the Tribunal asked the applicant when he first had problems as a result of his involvement in the RPP or his support for the monarchy. It went on to address both aspects of those claims.
Insofar as the applicant asserts that the Tribunal failed to engage in an active intellectual process, I note the caution expressed by the High Court in Minister for Immigration and Citizenship v SZJSS (2010) 85 ALJR 306 ; [2010] HCA 48 at [6] in relation to expressions such as this. In any event, critically, this is not a case in which the Tribunal failed to consider all the integers of the applicant’s claims. As indicated, the Tribunal has not been shown not to have comprehended, to have misunderstood or to have failed to consider the applicant’s claims in a manner constituting jurisdictional error.
Insofar as it was contended that the Tribunal failed to consider that Maoists were very influential in Nepal and that they persecuted their opponents, critically the Tribunal rejected the applicant’s underlying claims. It was therefore not necessary for it to go on to consider the implications for persons whose claims to be in the RPP or to be monarchists were accepted.
In ground four it is contended that the Tribunal decision was affected by an error of law, as the evidence that the Tribunal relied on was so unreasonable or so inadequate that the only inference was that the Tribunal failed to satisfy all its statutory requirements in dealing with the applicant’s case. It was said that the applicant’s evidence to the Tribunal was “inferentially adversely construed against” his claims and that this was “injustice”.
This ground is not made out. Insofar as it takes issue with the weight afforded by the Tribunal to evidence before it, including in particular documentary evidence provided by the applicant, the weight to be given to such evidence is a matter for the Tribunal. Insofar as it is a concern that relates to the Tribunal’s reliance on independent country information, the relevance of and weight to be afforded to such information is also a factual matter for the Tribunal. More generally, credibility findings are findings for the Tribunal and in this case such findings were open to it for the reasons that it gave on the material before it. In particular, it was open to the Tribunal to have regard to the applicant’s evidence at the Departmental interview in assessing his credibility.
The grounds in the application are not made out.
In the applicant’s affidavit, he contended first that the Tribunal “failed to observe its essence and purpose as it failed to collect together a number of aspects in which [his] claims have been regarded as unsupported conjecture” and that this was not fair.
Insofar as this claim reiterates aspects of the grounds in the application, (whether relating to a failure to consider integers of the applicant’s claims or of a failure to inquire) for the reasons given above such contentions are not made out. Nor, more generally, is a lack of procedural fairness or any actual or apprehended bias made out, again for the reasons given above.
The second paragraph of the affidavit is that the Tribunal “gave material weight” to its finding that the applicant could avoid persecution by relocating within his country or by living in India, but that its reasons “did not suggest that this finding was a discrete and severable reason for its inference” and hence that the Tribunal proceeded on an “erroneous factual conclusion”.
The Tribunal did not and did not need to address the issue of relocation in Nepal having rejected the applicant’s underlying claims. It found in the alternative, and reiterated that it was an alternative, that if it had accepted that there was a real chance the applicant would be persecuted if he returned to Nepal, he had a right to enter and reside in India for the purposes of s.36(3) of the Act and in those circumstances Australia would have no protection obligations to him.
As set out above, the Tribunal considered not only the Treaty between Nepal and India but also independent information about how the Treaty applied in practice in reaching this finding and it turned its mind to the exclusions or limitations in ss.36(4) and (5) of the Act.
The applicant’s disagreement with the Tribunal’s factual findings or its reliance on country information in this respect does not establish jurisdictional error. These claims are not made out.
The applicant then contends in paragraph three that the Tribunal did not have regard to the material procedures required to be observed under the Act. There was said to be no evidence or other material to justify the making of its decision and that the circumstances were “not appropriately dealt with by applying a presumption of national protection”. It is convenient to address these contentions in reverse order.
First, the Tribunal did not apply a presumption of national protection. The question of State protection in Nepal did not arise given the findings made by the Tribunal. The Tribunal properly considered, in accordance with ss.36(4) and (5) of the Act, the possibility that the applicant had a well-founded fear of being persecuted in India or that he would be returned to Nepal. Those claims are not made out.
Nor is this a case in which it can be said that there was no evidence or other material to justify the making of the Tribunal’s decision, having regard to the matters canvassed by the Tribunal in its findings and reasons as set out above.
I note that in concluding oral submissions, the applicant appeared to suggest that there was some issue arising from the Tribunal’s reliance on what he told the delegate at the Departmental interview.
Insofar as that may be taken to raise any suggestion that the Tribunal did not record accurately what occurred at the Departmental interview, the only evidence in that respect before the court is the Tribunal’s summary of the Departmental interview and there is no factual basis in the material before the court for any such contention.
I note also that any such contention is not consistent with the Tribunal’s account of the questioning of the applicant at the Tribunal hearing, in which it is recorded that it put to the applicant what he had said to the delegate, in particular, in relation to the success or otherwise of the RPP in the most recent elections in Nepal.
This is not a case in which it has been established that there was no evidence or other material before the Tribunal to justify its conclusions insofar as they were based on the applicant’s incorrect evidence given to the Department about the success of the RPP in the earlier elections.
As to the general and unparticularised allegation that the Tribunal did not have regard to the procedures required by the Act, there is nothing in the material before the court to establish any failure by the Tribunal to comply with the provisions of the Act, in particular Division 4 of Part 7 of the Act.
It appears from the Tribunal’s account of the Tribunal hearing that it raised with the applicant dispositive issues. In that context it is relevant to note that while the delegate rejected the truthfulness of the applicant’s claims having regard in particular to the very similar claims in the statutory declaration of another protection visa applicant, the Tribunal not only re-canvassed this area of concern with the applicant in the hearing but also raised other matters which might be dispositive issues, including the potential operation of s.36(3) of the Migration Act and country information in that respect.
Nor is there anything in the material before the court to establish any failure by the Tribunal to comply with s.424A of the Act. From the Tribunal’s account of what occurred in the hearing, it is sought to rely on s.424AA of the Act. There is nothing to suggest that it failed to comply with the procedural requirements of that section.
In particular, it put to the applicant the fact that the statutory declaration accompanying his original application was in significant parts in identical terms to a statutory declaration submitted by another applicant some three months earlier. The Tribunal set out that it put to the applicant that it was going to give him some information which it considered would be the reason, or a part of the reason, for affirming the decision under review and explained the various other matters required under s.424AA of the Act.
It detailed the manner in which it put the information to the applicant (including providing him with a copy of attachment A - and highlighted attachment A with the identical passages), the relevance of the significant similarities (suggesting they had a common origin and that the claims he made were not his claims) so that it cast doubt on the truth of his claims.
The Tribunal recorded the applicant’s explanation, the Tribunal’s concerns about this explanation and the applicant’s failure to address the issues raised.
It also put to the applicant his evidence at the Departmental interview about the RPP winning 43 seats in the election and the fact that a number of other things he had said at the Tribunal hearing were not the same as he had told the Department and explained that that this information was relevant because it made it difficult for the Tribunal to accept there was a real chance he would be persecuted.
The Tribunal also recorded that at the conclusion of the hearing it observed that the applicant was entitled to seek additional time and asked him again if he sought additional time to comment on or respond to the information to which he replied “No.”
This account does not reveal any failure to comply with s.424AA. I note that even if some of the matters put to the applicant at the hearing were not strictly speaking information within s.424A(1) of the Act, that does not constitute a jurisdictional error. Rather, it demonstrates that the Tribunal not only met its obligations under s.424AA of the Act but also under s.425 of the Act. There is nothing in the material before the court to suggest that there was any other information not put to the applicant that was information within s.424A(1) of the Act. This claim is not made out.
The next paragraph in the affidavit takes issue with the Tribunal’s analysis, which is said to postulate that the applicant did not face more generic problems with the Maoists. It is claimed that there ought to have been a more thorough analysis of country information.
As indicated, the Tribunal rejected the applicant’s underlying claims. It was not necessary for it to engage in an analysis of whether a person who was a member of the RPP as claimed, or who had experienced the events the applicant claimed, or who was a Monarchist as claimed, would have had a problem with the Maoists.
The general concerns about the Tribunal’s approach to country information do not establish jurisdictional error, given that the relevance and weight to be given to items of country information is a matter for the Tribunal.
The last paragraph in the affidavit is that the Tribunal failed to make a proper, genuine and realistic assessment of the risk of serious harm in the light of country information, that the applicant fled Nepal in search of protection because he felt it inevitable that he would be harmed or killed by the Maoists and that credibility “should not be an issue” in his case.
These contentions do not establish jurisdictional error. As indicated, the Tribunal did not accept the underlying claims made by the applicant and there is nothing in the Tribunal decision to indicate any error of law or otherwise constituting jurisdictional error in its approach to the issues of real chance of serious harm.
Insofar as the applicant seeks merits review either in the affidavit, the application or in his oral submissions, merits review is not available in this court as I endeavoured to explain to him.
His general contention that the Tribunal erred in relying on the delegate’s decision is apparently a contention that it rubber stamped that decision. As indicated above, it is not made out. The Tribunal conducted a de novo review in accordance with its statutory obligations under the Act.
Insofar as in oral submissions the applicant took issue with the Tribunal’s findings in relation to his ability to enter and reside in India, his contentions about his inability to live in India also seek merits review and do not establish jurisdictional error.
The fact that the Tribunal did not accept that the applicant could not practically enter and reside in India does not establish jurisdictional error or that the Tribunal disregarded his claims. The Tribunal considered but did not accept that there was a real chance that the applicant would be discriminated against in relation to employment in India for reasons of his nationality in such a way or to such extent that he would not be practically able to exercise the right to live and work freely in India. Insofar as the applicant intended to raise an argument that he may have confronted physical or economic circumstances that meant that he did not truly have such a right, the Tribunal addressed such a possibility on the material before it. (See SZMWQ at [110] per Flick J).
In oral submissions the applicant also reiterated some of his explanations given to the Tribunal when the issue of the substantially identical statutory declarations was raised with him. These matters and the issue that he takes with the Tribunal’s factual findings do not establish jurisdictional error. Nor does the fact that the Tribunal did not accept his explanations for the differences between his evidence to the delegate and the evidence at the Tribunal hearing. It was not obliged to accept such explanations.
Jurisdictional error has not been established on any of the bases contended for by the applicant. As no jurisdictional error has been established, the application must be dismissed.
Before I make the orders, I will hear submissions in relation to costs.
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 certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 29 April 2011
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