SZOXB v Minister for Immigration - [2011] FMCA 328

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOXB v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 328

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

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

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802
Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290; [1985] HCA 70
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1; [2004] FCAFC 263
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
SZFDE and Others v Minister for Immigration and Citizenship and Another (2007) 232 CLR 189; [2007] HCA 35

Applicant:

SZOXB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2822 of 2010

Judgment of:

Barnes FM

Hearing date:

20 April 2011

Delivered at:

Sydney

Delivered on:

20 April 2011

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $4,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2822 of 2010

SZOXB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal dated 26 November 2010. The Tribunal affirmed the decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant, a citizen of Fiji, arrived in Australia in February 2010 and applied for a protection visa in May 2010. In his protection visa application he claimed to fear severe punishment by soldiers in Fiji as he was a “marked man” by reason of his travel to Australia. He claimed the Fijian authorities would interrogate him about what he had told Australian authorities about the Fijian military regime and that he would not be protected by the Fijian authorities.
The applicant attended an interview with the delegate of the first respondent. What occurred in that interview is set out in some detail by the Tribunal in its reasons for decision. As the Tribunal indicated, it had listened to a recording of that interview. In the course of that interview the applicant explained that he had completed the protection visa application with the assistance of a named person who was said to be a Minister at a Methodist church in a named suburb in Sydney. In addition, when asked if he had experienced any unfair treatment by the military, the applicant explained he “had no freedom to move around”. When the delegate asked the applicant if there was unfair treatment towards him personally, he said that “when his lease expired he was told he had to leave” by the landlord and that “the government would not help him and there was no justice”. He claimed he waited for three months to lodge his protection visa application because it was only then that the Minister from his Church told him he could lodge the visa application. He also claimed that he feared that if he was deported from Australia, Fijian Government officials would “take him, question him and allege he gave information to the Australian authorities about the situation in Fiji”. He also said he could not return to Fiji because he did not have a house or any work there at the moment.
The delegate refused the application and the applicant sought review by the Tribunal. The Tribunal received a supplementary statutory declaration from the applicant on 3 November 2010.
The content of that statutory declaration is contained in the court book and set out in the Tribunal reasons for decision. In addition, a copy of such declaration is an annexure to the application filed in this court on 31 December 2010. I will return to its contents, but in brief the applicant asserted in that document that the pastor who assisted him with his initial application did not fill out the application correctly; the applicant also took issue with the time of arrival in Australia as recorded by the Department; and that he advised the Tribunal that in connection with the lease agreement he was asked to vacate the land and house he had occupied in Fiji for 35 years and that “by efflux of time the lease also expired at the same time and the owner did not renew a new lease agreement and instead used his method of using the army threats on us”. The applicant claimed that the government would take him away or kill him as the threats against him started at the insistence of the Army. He then went on to elaborate his concerns about returning to Fiji.
The applicant attended a Tribunal hearing on 4 November 2010 which was conducted with the assistance of an interpreter in the Hindi (Fiji) and English languages. The applicant was also represented by his registered migration agent.
The only evidence of what occurred in the Tribunal hearing is the Tribunal reasons for decision which set out the claims made by the applicant during the course of the hearing, including his reiteration of the claim that a Christian pastor who assisted him to fill out the application form did not speak Hindi and that the pastor was told the applicant’s details and claims by the applicant’s brother and that the form did not include all parts of his claims. He also claimed he had not been given an opportunity to elaborate on his claims by the delegate. Specifically, the applicant claimed that his family had leased land in a particular place in Fiji for a hundred years and that they had a signed lease agreement (which he did not currently have a copy of) which ended in 2001 and at that time the landlord refused to renew the lease.
The applicant told the Tribunal that when he did not vacate the land, members of the community and the army became involved and threatened him and his brother. When he complained to the police they said this was a matter for the landlord. He vacated the land in 2002.
The applicant also told the Tribunal that he was assaulted and robbed while walking down the street in November 2009, that the incident was reported to the police who took no action, but that he did not know the attacker. Country information was put to the applicant suggesting there was a high crime rate in Fiji and this may have been a random crime. The applicant expressed the view that he had been targeted as a result of the dispute in 2001 or 2002 about his land.
He also claimed that as a Hindu he had problems because of his religion and claimed that he had been attacked for a second time in 2009 and that again the police had taken no action to locate the unidentified attacker.
The Tribunal recorded that it put its concerns to the applicant about these claims and also further country information about the situation in Fiji and the implications of such information.
Relevant to the claims raised today, at the conclusion of the hearing the Tribunal recorded that it asked the applicant’s migration agent whether there were any further questions he would like the Tribunal to put to the applicant. The agent responded that he believed the applicant’s claims had been fully covered.
The Tribunal invited the agent to make comments or submissions. The agent emphasised that there was no interpreter at the Departmental interview and any discrepancies may have been a result of this. He also stated it may be possible to obtain a copy of the lease agreement from Fiji if required. The Tribunal indicated that this was a matter for the applicant if he would like to submit it, but that the Tribunal was not requesting a copy of it. There is no indication in the material before the court of any request for additional time between the time of the hearing and the Tribunal decision.
In its findings and reasons the Tribunal accepted that the applicant was a Fijian. It summarised his claims to fear persecution because he protested against the fact that his landlord would not renew his lease for a cane farm his family had run for 100 years and that he also claimed persecution because of his race as a Fijian of Indian ethnicity, his Hindu religion, imputed political opinion, and as a failed asylum seeker returning to Fiji.
The Tribunal dealt first with the applicant’s claims about non-renewal of the lease. It accepted that he had been a farmer on leased land for an extended period and when the lease ended in 2001 he tried to renew the lease but the landlord had refused. It also accepted that local people and the Army had become involved in the dispute and had sought to force the applicant off the land through threats and intimidation, that this was a stressful time for the applicant and it was devastating for him to lose the farm. However, the Tribunal had regard to the applicant’s evidence that the legal lease he held had expired and despite his assertion that he had an entitlement to remain on the land, the Tribunal found that, as had been advised to the applicant by the Fijian police and the Fijian Native Title Board, he had no legal right to remain on the land once the lease had expired and the landlord had chosen not to renew it.
The Tribunal found the involvement of the Army was in a policing role of enforcing the landlord’s right to ask the applicant to leave the land as he had no legal right to remain, and that the incidents and actions of the Army and local residents in visiting, threatening, harassing and detaining the applicant all related to a legal dispute between the applicant and his former landlord, and were not for any Convention-related reason. The Tribunal did not that accept there was any future risk of harm to the applicant on the basis of his past protests over the land.
Insofar as the applicant impliedly claimed that the lease was not renewed because of his race and/or religion, and that there existed systematic discrimination against Indo‑Fijians in relation to renewal of leases, the Tribunal acknowledged that Indo‑Fijians had experienced difficulties in renewing land leases, exacerbated by a recent decree in Fiji. However, it found no information to indicate that the decisions of individual landowners not to renew leases were systematic conduct or an officially sanctioned policy targeting Indo‑Fijians because of their race. The Tribunal had regard to the fact that the applicant, who had had employment that he told the Tribunal about, had been able to live and work in Fiji, despite the lease not being renewed. It did not accept that any economic harm the applicant faced was serious enough to constitute persecution, or that an essential and significant reason for economic harm was his race or any other Convention reason.
The Tribunal observed that, as it had put to the applicant, he had not raised any claims about having been assaulted twice in 2009 either at the Departmental level or in the statutory declaration provided to the Tribunal. However it was willing to give him the benefit of the doubt and accepted that he was assaulted twice in 2009 and had not mentioned this earlier due to language difficulties. However, the Tribunal did not accept the applicant’s claims that one of these assaults was retribution for his complaints about his lease not being renewed in 2001 and 2002, having regard to the time that had lapsed and the fact that it did not accept that someone wishing to harm him would not have been able to find him for seven years, or would have been interested in harming him after this time. The Tribunal found, instead, that the assault was a result of opportunistic, criminal actions and not specifically targeting the applicant for a Convention-related reason, having regard to country information put to the applicant at the hearing about high rates of crime in Fiji.
The Tribunal also addressed the claim of a second assault in 2009 by unknown, indigenous Fijians because of the applicant’s ethnicity and/or religion. It referred to the fact that the applicant did not articulate any basis for this belief, but said he did not know his attackers and could not identify them. For the reasons given in relation to the earlier attack the Tribunal was not satisfied this attack was for a Convention reason.
The Tribunal had regard to the fact that the relevant Convention nexus may be found in a failure of the State to protect an applicant from persecution by unknown assailants, but in this instance, found that the applicant’s inability to identify or describe the assailants was the likely reason the police were unable to assist him. It also found that country information did not suggest that Fiji tolerated or condoned violence against Indo‑Fijians, or that there was a systematic and discriminatory withholding of State protection for a Convention reason. The Tribunal found that generally effective State protection was available in Fiji, notwithstanding some problems faced by the Fijian police force.
Insofar as the applicant claimed a fear of persecution by the State on the basis that he was Indo‑Fijian or Hindu, while the Tribunal acknowledged there was country information in relation to race relations and tensions between the races, it found that the available information did not indicate targeting of specific societal groups or races or religious groups “unless the individual [was] engaged in acts of perceived criticism”. The Tribunal accepted the applicant’s evidence that he was not and had never been politically active, and found that he would not engage in acts of perceived criticism should he return to Fiji and had no real chance of persecution on that basis. While it also had regard to information about suppression of a range of civil and political rights in Fiji, on the basis of the applicant’s evidence that he was not politically active in Fiji or Australia it did not consider he had a political profile that would place him at risk if he was to return to Fiji.
The applicant also made claims that he feared returning because the Fijian government would know he had sought protection in Australia, or because he was returning from Australia. However the Tribunal found that independent country information suggested that generally harm would only occur to high profile activists returning to Fiji, whether or not there had been a protection visa application. Given that the protection visa application process was confidential, it did not accept that the authorities would be aware of the applicant’s application, but found that even if they were, this would not result in a real chance of harm given his lack of any political involvement or political profile.
The Tribunal did not accept the applicant would be persecuted for a Convention reason if he returned to Fiji in the reasonably foreseeable future on any of the bases raised by him. It affirmed the delegate’s decision.
The applicant sought review by application filed in this court on 31 December 2010. The application is accompanied by an affidavit attaching the Tribunal decision which reiterates the applicant’s claims to be entitled to protection and is attached to a document headed “Grounds of Appeal”. Because of the format of this document, at the start of the hearing I checked with the applicant that nothing was missing. It appears in some respects to be based on template grounds of appeal, although in other respects there are specific references to issues that relate to the applicant’s claims. In particular, I note that there is some difficulty with the numbering, there being no numbered paragraph 5 and no paragraph between 7 and 16. The applicant was not able to explain this, but agreed that the application was complete. It is also accompanied by a one-page document headed “Well Founded Fear Consideration” which also seeks to raise a ground of review.
The applicant did not file written submissions, but was given the opportunity to make oral submissions today and did so. He made a number of assertions about what might have prevented him from adequately putting his case forward. To a large extent these related to the assistance he claimed he obtained in completing his protection visa application, but he also appeared to raise issues about his ability to present his case to the Tribunal.
Whether considered individually or as a whole, these claims do not establish that the applicant was not given a proper opportunity to put his case before the Tribunal in such a manner as to constitute jurisdictional error on any basis whether as contended for in his application or otherwise.
As the solicitor for the first respondent pointed out, it was not entirely clear from the applicant’s oral submissions whether he sought to take issue with the Tribunal’s understanding of his claim about the lease his family held on a property in Fiji, and in particular, whether he was removed from the land at a time when the lease was still current. It is apparent from the Tribunal reasons for decision, in particular from the statutory declaration included in the application as well as provided to the Tribunal, that while the applicant not only pointed out that the protection visa application form was not satisfactorily filled in by the pastor, he also went on to make his claim in relation to the cane farm which he claimed was “possessed by the Kavitain”. Relevantly, as set out above, he advised the Tribunal that he was asked to vacate the land and house, and that the lease also expired at the same time. The Tribunal also recorded in its reasons that in the Tribunal hearing the applicant confirmed that he had a signed lease agreement (which he did not currently have a copy of) and that the lease agreement ended in 2001, at which time the applicant refused to move.
Insofar as the applicant may have been intending to assert that there was some misunderstanding of his claims in this respect, in its findings and reasons the Tribunal addressed the claims as made by the applicant in the statutory declaration and in the Tribunal hearing.
The applicant also appeared to suggest that in some way there was unfairness in the Tribunal process because he wanted to show the lease agreement to the Tribunal but they did not give proper consideration to his claims. I endeavoured to clarify this claim with the applicant and also his claim about whether he wanted to tell the Tribunal he had a lease at the time he was asked to vacate the land. His response was that he had told the Tribunal what had happened but he did not think that the Tribunal gave it proper consideration.
Insofar as this appears to be a contention that the Tribunal failed to consider an integer of the applicant’s claims, it is not made out. As set out above, the Tribunal dealt in detail with the applicant’s claims in relation to non-renewal of the lease, but did not accept that as a result the applicant faced a well-founded fear of persecution.
Insofar as the applicant seemed to suggest that he did not have an opportunity to provide a copy of the lease to the Tribunal, as he told the Tribunal and confirmed today, he did not have a copy of the lease at the time of the Tribunal hearing. I note in that respect that at the end of the hearing the migration agent told the Tribunal it may be possible to obtain a copy of the lease agreement from Fiji, and that the Tribunal indicated this was a matter for the applicant. There is no evidence of any request for further time from the Tribunal to provide such a document after the hearing on 4 November 2010 but prior to the making of the decision on 26 November 2010. No jurisdictional error is established on the basis of any discussion with the Tribunal or the applicant’s failure to have a copy of the lease to provide to the Tribunal at the time of the Tribunal hearing.

In oral submissions the applicant appeared to elaborate on his claim that the pastor who had helped him had not filled in the right information on the protection visa application form. Insofar as he contended that this resulted in some unfairness, there is nothing in the material before the court to suggest that there was any unfairness constituting jurisdictional error on the part of the Tribunal. The applicant raised his concerns about the pastor’s failure with the Tribunal and, notwithstanding the absence of claims in the protection visa application, the Tribunal placed no reliance on this but considered the claims in relation to the non-renewal of the lease and also the physical assaults in 2009 (which had also not been mentioned in the supplementary statutory declaration).
Insofar as the applicant may be taken to suggest that some injustice was done to him by the pastor, while he claimed he could not find the pastor, he had been able to provide information to the Department and the Tribunal about the pastor. In any event, there is nothing in the evidence before the court (and the applicant’s submissions do not raise any concerns) such as would involve consideration of whether there had been some third party fraud on the Tribunal in the sense considered in SZFDE and Others v Minister for Immigration and Citizenship and Another (2007) 232 CLR 189; [2007] HCA 35. As indicated, even if the applicant’s claims were not set out correctly in the protection visa application, the Tribunal made allowance for this, heard his claims at the Tribunal hearing and in the statutory declaration, and considered each of those claims.
Turning then to the lengthy document headed “Grounds of Appeal” attached to the application, the applicant did not address the detail in any of these grounds in his oral submissions although some of the matters he raised are touched on in those grounds. Some of the paragraphs of these grounds do not in themselves contain grounds as such, but are rather expressed in general form as might appear in the context of a submission. For example it is contended generally that the Tribunal decision was “infected with jurisdictional error and procedural error” and that “this was detrimental to the applicant getting a fair hearing because the Tribunal would have had perceived (sic) bias against” him. The basis for such an allegation is not entirely clear. Insofar as it is intended to encompass what appears thereafter, the subsequent paragraphs relate to the Tribunal hearing and suggest that the Tribunal did not understand that the pastor was a Fijian and that the manner in which he had filled in the protection visa application had jeopardised the applicant’s Convention rights.
It is claimed, specifically, that the Tribunal did not raise any specific issues at the hearing in relation to that issue. However, as indicated, the Tribunal did not draw any adverse conclusions or any inferences at all from the inaccuracies contained in the protection visa application. The applicant was given the opportunity at the hearing to elaborate on all the elements of his claims, and indeed the Tribunal accepted as true claims made only for the first time at the hearing about the assaults in 2009, thus giving the applicant, as the Tribunal stated, the benefit of the doubt. There is nothing in paragraphs four to seven of the so-called “Grounds of Appeal” to establish either actual or apprehended bias or any other jurisdictional error on the part of the Tribunal arising out of the conduct of the hearing.
Nor, more generally, is there any other basis for any allegation of actual or apprehended bias in the sense considered by the High Court in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 and Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17. It is well established that it is a rare and exceptional case in which bias will be established only on the basis of the Tribunals reasons for decision. This is not a case in which the manner in which the Tribunal conducted the hearing, or indeed its findings, are such as to demonstrate bias in the form of pre-judgment, or such as to establish an apprehension of bias from the perspective of what the appropriately informed hypothetical lay observer might reasonably apprehend. These contentions are not made out.
The document then jumps to paragraph 16, headed “Breach of S.424A” (which is obviously intended to be a reference to the Migration Act 1958 (Cth)). It is contended that the Tribunal breached s.424A of the Migration Act and used the delegate’s information and conclusions in making its decision. Insofar as this may be intended to be a contention that the Tribunal was obliged to put to the applicant information that he had given to the delegate, the Tribunal account of the hearing includes a discussion between the applicant and the Tribunal member of the issues that were raised in the interview with the delegate, the applicant’s explanation for the omission of claims before the delegate, and also the adviser’s claim that there was no interpreter at the time of the Departmental interview. All of these matters were taken into account by the Tribunal.
There is nothing in the Tribunal findings or reasons to indicate that there was information relied on by the Tribunal that engaged its obligation under s.424A(1) of the Migration Act. Insofar as this ground is intended to take issue with the Tribunal’s use of independent country information, that is within the exception in s.424A(3)(a) of the Migration Act. But in any event I note that in the course of the hearing the Tribunal did raise independent country information with the applicant (see s.425 of the Migration Act). No failure to comply with s.424A(1) of the Migration Act has been established.
It has not been established that the Tribunal erred in the manner contended for generally in this part of the grounds of appeal. Associated with these grounds is a contention that “The interpretation and understanding of The knowledge of English of the applicant was misleading and confusing and Therefore a fair trial at the Hearing is demanded” (sic). Insofar as this is a reference to the conduct of the Departmental interview without an interpreter, the Tribunal made allowances for this and, as indicated, accepted that because of language difficulties the applicant had not raised claims at the Departmental interview that were later made to the Tribunal.
Insofar as this claim is in relation to the Tribunal hearing, that was conducted with the assistance of a Fijian/Hindi interpreter as requested by the applicant. The only evidence of the hearing is in the Tribunal reasons for decision and the applicant has not established that the standard of interpretation was so inadequate that he was effectively prevented from giving evidence or that errors were made by the interpreter at the hearing (let alone that any errors were material to the conclusions of the Tribunal adverse to him in the sense considered in Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230).
Paragraph 19 asserts that the decision was so unreasonable that no reasonable person could have reached it. It is contended that the delegate, and for that matter (at this point in the Grounds of the application something is missing which appears to be a reference to the Tribunal) misconceived the concept of persecution under the Convention and the delegate did not explain why discrimination did not amount to persecution.
It is also contended that the claimed discrimination did amount to persecution and also that even if such actions were solely by reason of the authorities, they must be classified as persecution by reason of political opinion. It is then said that the Tribunal placed insufficient weight upon the circumstances and the “heavy rules laid down by the Constitution as they existed at the time of departure which grounded fear of persecution” and that “the delegate failed to meet his obligations under section 13 (sic) of the act” by “acting upon impermissible reasons and then reaching unreasonable conclusions”.
These proceedings are, of course, proceedings seeking review of the Tribunal decision and I take the references to the Delegate, at their highest, to be intended to encompass references to the Tribunal.
It has not been established that the factual conclusions reached by the Tribunal were so unreasonable or so unfair that no reasonable person could have made them. Nor is this a case in which there can be said to be no evidence for the decision reached by the Tribunal in relation to the lack of a Convention nexus. It has not been established that the Tribunal misconceived the concept of persecution in the manner set out in the ground (which, in fact, appears to take issue with the Tribunal’s conclusions). Merits review is not available in this court. Contrary to the applicant’s contentions, the Tribunal understood the bases on which he brought his claims and the alternative Convention reasons relied upon by him. It considered all of those claims, whether expressed or able to be perceived in terms of race, religion, ethnicity or other Convention reasons, including political opinion. It also looked at the possibility of persecution arising from the failure of the State to protect the applicant from unknown assailants.
There follow some paragraphs which do not appear to have particular relevance to the Tribunal decision in question in this case, including a reference to the “Handbook on Procedures and Criteria for Determining Refugee Status issued by the office of the United Nations High Commissioner for Refugees” a suggestion that it is impossible to distinguish the situation in this case from that in “Minister of Immigration and Ethnic Affairs v Mayer”. It is not quite clear why there is a reference to that case. It has no citation. It may be intended to be a reference to a 1985 High Court decision, Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290; [1985] HCA 70 in relation to the power of the Minister to make a determination as to refugee status under the Migration Act as then in force. It has no relevance in the present circumstances, having regard to the current form of the Migration Act. This is a review of a Tribunal decision. (See Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6 at [32] – [38]).
The grounds then reiterate that the applicant satisfies the test for persecution. Merits review is not available in this court insofar as these contentions are intended to persuade the court to make a decision on that basis.
Subsequently, under the heading “Well Founded Fear Consideration”, the applicant asserts that the Tribunal failed to consider his claims of well‑founded fear of persecution and refers to authorities, including what appears to be Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802; as well as NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1; [2004] FCAFC 263, and Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26. However the Tribunal considered each of the claims articulated by the applicant as set out above.
Insofar as this is intended to be a reference to the claims made in the statutory declaration that accompanies the application filed in this court, the Tribunal considered the claims made in that statutory declaration, including the claims that had not been raised in the protection visa application in relation to the non-renewal of lease. I note specifically in that respect that the Tribunal accepted that local police and the army had become involved in the dispute and had sought to force the occupant off the land through threats and intimidation, as he claimed. However the Tribunal found the involvement of the army was in a policing role, to enforce the landlord’s right to ask the applicant to leave as he had no legal right to remain, that the events were not for any Convention-related reason and that there was no future risk of harm to the applicant on the basis of his past protests over this land.
In other words, the Tribunal accepted the applicant’s core claims as true, and also that the 2009 assaults he complained of occured, but was unable to find any Convention basis for the asserted fear or any likelihood of the applicant experiencing persecution now or in the reasonably foreseeable future. Such findings were open to the Tribunal on the material before it for the reasons that it gave. They neither support the claim of actual or apprehended bias and nor do they establish that there was a failure to have regard to relevant considerations or jurisdictional error on any other basis. No jurisdictional error is established on any of the bases contended for by the applicant. Accordingly the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful and the Minister seeks costs in the sum of $4,800. The applicant told the court that he was unemployed and had insufficient funds to pay the costs. However his lack of funds is not a reason for departing from the normal principle that the unsuccessful applicant should meet the costs of the first respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs. The amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date: 9 May 2011