SZQLO v Minister for Immigration - [2012] FMCA 23

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQLO & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 23

MIGRATION – Review of decision of the Refugee Review Tribunal – whether the Tribunal misconstrued the applicant’s claims – “mixed marriage” and particular social group – consideration of when the Tribunal needs to consider the issue of relocation – whether the Tribunal misapplied the “real chance” test – request for impermissible merits review – Tribunal’s findings were reasonably open to it – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91S, 91R, 476

Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No.2) [2004] FCAFC 263; (2004) 144 FCR 1
Chan Yee Kin v Minister for Immigration & Anor [1989] HCA 62; (1989) 169 CLR 379; (1989) 87 ALR 412
Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225; (1997) 142 ALR 331
MZYFM v Minister for Immigration and Citizenship [2010] FCA 444
BRGAE of 2008 v Minister for Immigration and Citizenship [2009] FCA 543
VWBU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 39
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415
Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265
SZATV v Minister for Immigration and Citizenship and Another [2007] HCA 40; (2007) 233 CLR 18; (2007) 237 ALR 634
VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965
Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) [1997] HCA 22; (1997) 191 CLR 559; (1997) 144 ALR 567
Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

First Applicant:

SZQLO

Second Applicant:

SZQLP

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1550 of 2011

Judgment of:

Nicholls FM

Hearing date:

11 October 2011

Date of Last Submission:

11 October 2011

Delivered at:

Sydney

Delivered on:

20 January 2012

REPRESENTATION

Counsel for the Applicants:

Mr A Kumar (direct access)

Appearing for the Respondents:

Ms M Stone

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The application made on 21 July 2011 is dismissed.
The applicants pay the first respondent’s costs set in the amount of $4,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1550 of 2011

SZQLO

First Applicant

SZQLP

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made on 21 July 2011, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), to review the decision of the Refugee Review Tribunal (“the Tribunal”) made on 24 June 2011, which affirmed the decision of a delegate of the respondent Minister not to grant protection visas to the applicants.

Background

The applicants are husband (“the applicant”) and wife (“the applicant wife”) who are citizens of India. They arrived in Australia together on 14 April 2010 (CB 26 and CB 28). The applicant is a Sikh and the applicant wife follows Dera Saccha Sauda (“DSS”), which is a different form of Sikhism (CB 31). The applicants applied for protection visas on 14 July 2010 (CB 2 to CB 24). Only the applicant appears to have applied for protection in his own right. The applicant wife applied as a member of his family unit. Subsequently however, on 26 July 2010, both applicants submitted a statement to the Department of Immigration and Citizenship (“the Department”) setting out claims for protection (CB 31 to CB 32).

Claims to Protection

The applicants married on 18 June 2011 (CB 31). They claimed that because of their different religious beliefs their union was objected to by their respective families, and asserted that they were both “disowned” and forced to move from their familial homes into a small apartment together (CB 31).
It was claimed that threats were made by both families against the applicants, including death threats against the applicant (CB 31). Further, that prior to moving they were harassed by their families, and that this harassment continued once they had moved to a new location (CB 31).
The applicants claimed they sought the assistance of the police but were advised it was a family matter to be settled by the parties, not the authorities (CB 31).
As a result of this conflict, it was asserted that the applicant wife became “upset” and attempted to commit suicide (CB 32). Following this the parties endeavoured to, and ultimately did, move overseas (CB 32).

The Delegate

The applicant attended an interview with the delegate on 28 October 2010 (CB 55 to CB 56) and gave oral evidence to support his and the applicant wife’s claims (CB 69). A copy of a letter from the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (“STARTTS”) to the Asylum Seeker Assistance Scheme was also submitted to the Department (CB 58), which commented on the applicant wife’s emotional and mental condition.
At the interview the applicant claimed for the first time that he had been approached at his workplace, a construction site, by 13 to 15 masked people who were brandishing weapons, and who called out his name (CB 69). He asserted that he had received some blows from them, but was able to run away and avoid injury (CB 69 to CB 70). He claimed that he believed his parents had arranged the attack (CB 69 to CB 70). Although he accepted that this was only speculation on his part, and would be an unexpected reaction from his parents (CB 69).
The delegate noted that the harm feared must involve “serious harm” and systematic and discriminatory conduct (CB 69). However, the delegate found that the applicant did not have a genuine fear of harm (CB 70). Further, the delegate found that there was no real chance of persecution occurring (CB 70). On this basis, the delegate refused the application for a protection visa by the applicant. The applicant wife’s application was also refused as a result.

The Tribunal

On 24 December 2010 the applicants applied to the Tribunal for review of the delegate’s decision. Both applicants were invited to attend a hearing on 11 February 2011 (CB 79 to CB 80).
On 31 January 2011, the applicant contacted the Tribunal and requested that the hearing be postponed (CB 81). He was advised that the request for postponement, as well as the reasons for the request, would need to be provided in writing (CB 81). On 1 February 2011, the Tribunal received a letter from the applicant, dated 31 January 2011, requesting that the hearing date be postponed to allow him to obtain documents from India. A Tribunal officer contacted the applicant on 4 February 2011 in order to have the reasons for postponement better explained (CB 84). On 8 February 2011 the applicants’ request for postponement was ultimately granted, and a new hearing time on 30 March 2011 was allocated (CB 85 to CB 86).
Both applicants appeared at the hearing and were assisted by an interpreter in the Punjabi language (CB 95).
The only account before the Court of what occurred at the hearing is that contained in the Tribunal’s decision record ([26] at CB 104 to [61] at CB 108).
The Tribunal considered country information regarding the DSS and the group’s relationship with the Sikh population in the Punjab ([62] at CB 108 to [69] at CB 110). Further, the Tribunal considered the United Kingdom Home Office operation guidance note with respect to internal relocation in India ([70] at CB 110 to [71] at CB 111).
It accepted that the applicant was a Sikh and that the applicant wife was a DSS follower. The Tribunal found it plausible that the families of both applicants had disowned them, and that the applicant’s family had threatened to kill him if he returned to their village. The Tribunal also accepted that the applicant wife was upset and worried by these events. The Tribunal found that the Convention ground of religion was the “significant and essential reason for the harm feared” ([74] at CB 111).
However, the Tribunal did not find that the applicants faced a real chance of persecution at the hands of their family members or others due to their separate religions ([75] at CB 111). Further, the Tribunal found the applicant’s claim that he had been attacked by 13 to 15 armed men to be implausible ([77] at CB 112). Consequently, the Tribunal found that the applicant’s family had not organised the attack, nor that it was reported to the police ([77] at CB 112).
The Tribunal did find it plausible that some threats had been made to the applicants by their respective families ([77] at CB 112). However, the Tribunal held that these threats were made in an attempt to break up the applicants’ relationship ([78] at CB 112), and the applicants’ chance of suffering serious harm was “remote and insubstantial” ([79] at CB 112).
While recognising that the applicants were likely to face continuing familial and social disapproval ([80] at CB 112), the Tribunal held that this ostracism was not sufficient to amount to persecution within the meaning of the Refugees Convention ([84] at CB 113). Consequently, the Tribunal found that the applicant and the applicant wife did not have a well-founded fear of persecution within the meaning of the Convention ([87] at CB 114).
Given the above finding, it was not “strictly necessary” for the Tribunal to consider the possibility of internal relocation. However, the Tribunal elected to do so and found that, if the applicants’ claim of persecution was substantiated, they would still not be owed a protection obligation by Australia as it was reasonable for them to relocate within India ([92] at CB 115).

Application to the Court

The application before the Court is in the following terms (without particulars):
“Ground 1
The Tribunal accepted that ‘the parents and society in general to frown upon the marriage across religions in India…’ (RRT Decision, p13 at [77]). The Applicant claims that the Tribunal failed to consider/misconstrued a Convention basis of the claim stating that the Applicants’ claim on basis of religion only was being considered whilst the Applicants are a (mixed religion family) particular social group that are unlikely to receive state protection in light of serious threats by family members to harm the Applicants (threat to kill which is a serious harm under s 91R(1) & 91R(2)(a) of the Act) and failed to consider evidence relating to this.
Ground 2
The Tribunal committed jurisdictional error when it stated that the Applicant were able to internally relocate in India (RRT Decision, p16 at [92] – [93]). The Tribunal erred in failing to take into account all the factors affecting the Applicants and whether the Applicants could relocate in practical sense which has formed overall assessment of whether there was a real chance of harm.
Ground 3
The Tribunal committed jurisdictional error when it applied the balance of probabilities test when it stated that ‘the applicant’s or his wife’s family actually intended to carry out the threat’ (RRT Decision, p13 at [78]).”

Before the Court

At the hearing before the Court Mr A Kumar of counsel appeared for the applicants. Ms M Stone appeared for the first respondent.

Ground One

Ground one asserts that the Tribunal misconstrued, and therefore failed to consider, an element of the applicants’ claims. This was said to be that the applicants did not just claim to fear persecution on the basis of religion, but that the basis of the fear was that the applicants feared harm because they were a “mixed religion family”.
Further, that in these circumstances, the applicants were members of a “particular social group” and were unlikely to receive state protection in circumstances where serious threats had been made to the applicants by family members.
As I understood it, there are two related elements to the applicants’ attack in ground one.
The first is that the Tribunal failed to deal with an element of the applicants’ claims. Namely that they feared persecutory harm, not only because of religion, but because they were of a “mixed religion family”. This attack relied on such authorities as Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [13] and [42] per Allsop J, NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No.2) [2004] FCAFC 263; (2004) 144 FCR 1 at [55] - [63] per Black CJ, French J (as he then was) and Selway J.
The second limb of the attack is that the Tribunal failed to understand and deal with their claims on the basis of their membership of a “particular social group”. This was variously said to be “members of a mixed race family” or “the applicants’ family”.
Mr Kumar took the Court to various parts of the Court Book to, at first, submit that the applicants’ claims in this regard were expressly made, but then appeared to concede that the criticism was put on the basis that they clearly arose from the circumstances presented.
On the material before the Court I cannot accept either proposition or line of attack.
In their written statement presented with the application for the protection visas the claims that were put by the applicants, with the help of their representative, was that their families disapproved of their marriage because of their different religions (CB 31 to CB 32).
In their evidence to the Tribunal at the hearing the applicants repeated this claim, albeit with some further particulars provided (in particular, at [32] (at CB 104) to [36] (at CB 105), [38] (at CB 105), [41] (at CB 106), [44] at (CB 106), and [51] - [54] (at CB 107)).
The thrust of the submissions before the Court was that when regard is had to [74], [76] and [78] of the Tribunal’s decision record (at CB 111 to CB 112), namely, the parts of the record relevant to the applicants’ core claims, the Tribunal did not deal with the claims as they arose from the circumstances presented.
Before the Court the submission was also that the applicants were

self-represented before the delegate and the Tribunal. The inference sought to be drawn therefore was that the presentation of their claims and evidence should be read in that light.
I cannot see how this can assist the applicants before the Court now.
First, it is not for the Tribunal to make out the applicants’ case for them. It is up to the applicants to put forward their claims and evidence.
Second, there is no obligation on the Tribunal to give “leeway” to unrepresented applicants, as is implied in this submission. The Tribunal is not obliged to read into the claims as presented something that does not clearly arise on the circumstances presented.
Third, there is nothing in the material before the Court, nor was it otherwise suggested by counsel, that the applicants were not given a fair opportunity before the Tribunal to present their arguments, give their evidence, and make their submissions to the Tribunal.
A plain, let alone fair, reading of the Tribunal’s analysis reveals that it dealt with the claims as expressly made, or clearly arising from the circumstances presented.
The applicants claimed to be of different religions, and upon their marriage their religious differences caused their families to become “infuriated” and to harass and threaten them. The applicant explained at the hearing that his parents were “… against the DSS because of the huge misunderstanding between Sikhs and DSS followers in the Punjab…” ([32] at CB 104).
At the hearing, the applicants also gave evidence that their fear of persecutory harm emanated from their respective families. Mention was made at the hearing, as well as a brief mention in the initial statement, of the background to the parents’ opposition to their marriage, namely “religious fights in the Punjab” (CB 32.4).
While this background was discussed at the hearing (see for example [32] (at CB 104), [47] (at CB 106) and [53] (at CB 107)), it is clear that the basis for the claim to fear persecutory harm was that it emanated from their families, and not from some wider source.
The applicant was specifically asked by the Tribunal as to the source of his claimed fear of harm: “… [w]hen asked who specifically, the applicant said he is scared of his family and his wife’s family.” ([44] at CB 106.) When the applicant wife was asked whether she had been troubled by others: “… apart from her family, as a follower of DSS. She said people she knows who follow DSS do not want to accept her husband, and it is the same with Sikh people and herself.” ([54] at CB 104.) The applicant wife did not claim that any fear of serious harm arose from this lack of acceptance. (The issue of ostracism was otherwise dealt with – see at [52] below.)
In only one instance did the applicant make reference to a specific harm said to have been occasioned by someone other than a member of their families. The applicant claimed that he had been “attacked by

13-15 men at his work site... [in] 2007…” ([38] at CB 105). At the hearing the Tribunal “… noted that it seems extraordinary for 13 plus men brandishing swords to attempt to kill him, with many people present.” ([38] at CB 105.) The applicant “… said it is not a big thing in the Punjab.” ([38] at CB 105.) But even in this instance the applicant’s evidence was to link this episode to his family “... [h]e thinks his family were behind it.” ([38] at CB 105.) The applicant wife also gave similar evidence in this regard ([56] at CB 108).
The Tribunal dealt with these claims as put, and as they clearly arose, from the circumstances.
Although not raised as an issue in these proceedings, it is important to note that although it was said that the families of both applicants were opposed to their marriage and objected to it, it was only the applicant who specifically claimed to fear serious harm as a result. At its highest the applicant wife’s position was that “… her uncles had told her mother they do not want to have anything to do with them.” ([54] at CB 107.)
I agree with Ms Stone that the “claims” which the applicants attempted to articulate before the Court now were not expressly made, nor clearly arose, from the circumstances presented.
Before the Court the applicants’ claim that the reason for the infliction of harm was because they were participants in a “mixed marriage” and that this formed the basis of a “particular social group”. Although it must be said that before the Court the articulation of the constituent parts of this group remained, at best, vague beyond the reference to “mixed marriage.”
In this regard I agree with Ms Stone that the basis advanced for the respective parents’ objection to the marriage was that the applicant’s family objected because the applicant wife was a follower of DSS, and her family objected because the applicant was a Sikh.
It cannot be said in the circumstances that the objections to their relationship, and the basis for the claim to fear persecutory harm (“serious harm” – ss.91R(1) and (2) of the Act) was other than the respective parents’ opposition to the religion of their respective child’s spouse. There was no evidence before the Tribunal, nor, it must be said, was the claim made in any event, that a “mixed marriage” of itself could form the basis of a “particular social group”.
But what also, and separately, answers the charge in ground one is, as Ms Stone correctly submitted, that the factual basis of the argument advanced before the Court, and the claims relevant to this before the Tribunal, were rejected by the Tribunal.

The Tribunal found some aspects of the claims and evidence to be implausible and exaggerated ([76] at CB 112). However, it accepted as plausible that some threats from the applicant’s family may have been stated ([77] at CB 112).
But on the evidence, the Tribunal was not satisfied that “… the applicant’s or his wife’s family actually intend to carry out these threats.” ([78] at CB 112.) The Tribunal gave reasons for this which were reasonably open to it on what was before it. These included the nature and basis of the threats and the applicants’ four year delay in leaving India. This latter point was found by the Tribunal to “… not equate with a strong subjective fear of persecution.” ([78] at CB 112.)
As to what could be said to arise in a more general sense from the background presented, the Tribunal did accept that given their individual circumstances the applicants were likely to face some consequences because of their “mixed marriage”. That is that
“… familial and social disapproval and ostracism will continue to some degree.” ([80] at CB 112.)
However, the Tribunal specifically found that any such treatment would not amount to persecution in the Convention sense (see the various references to authorities at [81] - [84] at CB 113, and in particular Chan Yee Kin v Minister for Immigration & Anor [1989] HCA 62; (1989) 169 CLR 379; (1989) 87 ALR 412 (“Chan Yee Kin”) and Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225; (1997) 142 ALR 331).
This provides the complete answer to the claim that the Tribunal misconstrued the claims, and did not proceed to deal with it on the basis of a “particular social group”.
Ms Stone relied on authority, binding on this Court, for the proposition that once having rejected the factual basis for the claim as actually made (which as set out above was not made in the way asserted now), the Tribunal was not obliged to go through the steps of identifying any “particular social group” in circumstances where the claim is rejected at the factual level (MZYFM v Minister for Immigration and Citizenship [2010] FCA 444 at [25] per North J and BRGAE of 2008 v Minister for Immigration and Citizenship [2009] FCA 543 at [23] per Collier J).
Mr Kumar sought to rely on VWBU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 39 and, as I understand it, to draw on Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 (“Dranichnikov”) as was done in that case (at [7] per Merkel J). The difficulty for the applicants now however is that in that case Merkel J found the circumstances before him to be “analogous” to Dranichnikov. For the reasons already referred to above, the current circumstances do not advance to that point.
I should just note that in Dranichnikov the Court found (see for example at [68] per Kirby J) that it was important to specify with precision the “social group” that an applicant says is applicable to his or her claims. That did not happen before the Tribunal, and it did not happen before the Court.
Nor were the applicants able to explain before the Court how the now advanced “particular social group” survived the barrier relevantly imposed by s.91S of the Act, and in particular a social group that consists of their family.
In all, ground one is not made out.

Ground Two

In ground two the applicants seek to attack the finding made by the Tribunal that the applicants could relocate within India. The charge is that the Tribunal failed to take into account all of the relevant factors in assessing whether the applicants could so relocate.
While the particulars assert that the Tribunal failed to consider the applicant wife’s “mental condition”, and whether she could receive treatment for it if she were to relocate, the submissions also extended this alleged failure to include “such issues” as “background, education and financial resources”.
The Tribunal found, with reasons, and as open to it, that there was no real chance that the applicants would suffer persecution for any Convention reason if they returned to India in the reasonably foreseeable future (up to [87] (at CB 114) of the analysis).
Other than the errors asserted in grounds one and three, no other error is asserted now by the applicants in that part of the Tribunal’s analysis. For reasons explained in this judgment, neither grounds one or three are made out. The conclusion expressed at [87] (at CB 114) therefore stands alone and independent, and is the basis for the Tribunal’s affirmation of the delegate’s decision.
In these circumstances, it is not clear why the Tribunal went on to consider the question of relocation. It recognised for itself that such a step was “… not strictly necessary…” ([88] at CB 114).
The mere fact that it did proceed down this path does not, of itself, reveal jurisdictional error (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 (“SZMCD”)). What it does do is at least raise the necessity for this Court to ask whether its earlier conclusion was attended with such doubt that it was necessary to consider relocation notwithstanding its claim to be not “strictly necessary”.
The qualification “strictly” is itself problematic. Whether “strictly” or otherwise, the necessity for considering the question of relocation flows (as was explained in relevant authorities, see Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265 (“Randhawa”), see also SZATV v Minister for Immigration and Citizenship and Another [2007] HCA 40; (2007) 233 CLR 18; (2007) 237 ALR 634 (“SZATV”)) from the Convention requirement that a

well-founded fear of persecution must apply to the country of claimed persecution as a whole.
In the current case the Tribunal has further complicated matters by its analysis at [91] (at CB 114). Here the Tribunal found that the applicant’s claims were “highly localised”. That was open to the Tribunal. But it then goes on to reject one of the applicant’s objections to relocation (that his father’s uncle had links to members in the “legislative assembly”) on the basis that it had already found there was not a real threat of persecution by members of the family.
Thus supplying the “nonsense” in the sense of the absence of any necessity (strictly or otherwise) of considering relocation. In short, there was no need to consider relocation because, simply, there was no need to relocate away from the local areal to avoid serious harm in the Convention sense.
In any event, I agree with Ms Stone that there are two separate reasons, independent of each other, to reject the proposition that ground two reveals jurisdictional error in the Tribunal’s decision.
The first is that even if some error was found in the “relocation” analysis and conclusion, the earlier independent finding is sufficient to uphold the Tribunal’s ultimate conclusion without revealing jurisdictional error in its decision as a whole (VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965).
The second is that no error is revealed, in any event, in its relocation analysis.
It is the case that a failure to consider the applicants’ objections to relocation could lead to jurisdictional error (Randhawa, SZATV and SZMCD). Further, relocation must be found to be reasonable in the circumstances before the Tribunal can be said to have properly discharged its legal duties as to the relevant test (Randhawa and SZATV).
First, in this regard, the Tribunal understood that the test was one of “reasonableness” ([90] (at CB 114) and [92] (at CB 114 to CB 115)).
Second, the applicants’ objections to relocation were as recorded at the relevant points of the report of the hearing where the Tribunal specifically raised the issue of relocation with both applicants ([42] to [43] (at CB 106) for the applicant, and [55] (at CB 107) for the applicant wife).
The objection raised by the applicant was that his family would find him because his father’s uncle had “political links”. The Tribunal dealt with this at [91] (at CB 114).
The applicant wife did raise the issue of her mental or emotional depression. However this was not responsive to the question raised by the Tribunal, such that is unclear as to the precise context in which it was raised at [55] (at CB 107):
“The Tribunal asked [the applicant wife] if she considers it safe to relocate within India. She said she became depressed after her marriage in India and at one point considered it was better that she die. Her husband’s family had caused him a lot of grief and given them so much pain. She said they are very happy here and she would rather commit suicide then return. The Tribunal asked [the applicant wife] if she is in contact with any family members. She said she does not want to have any contact, given they have produced so much hatred. She said she does not like anyone who does not like her husband.”
On balance, it appears the question of her depression was raised as an example of the consequences of her family’s attitude for her and her husband.
In any event the Tribunal dealt with the applicant wife’s claimed depression and psychological problems. Not only in the context of relocation, but as an issue going to their return to India as a whole, and whether this condition should inform the question of a well-founded fear of persecution ([93] at CB 115).
Even if this were to be treated as only an objection to relocation, the applicants’ ground as particularised, and explained, is not made out. There was never any suggestion by either applicant that she would seek treatment, let alone that it would not be available to her, if she were to return to India.
Nor, it must be said, was the letter from the STARTTS of much assistance in this regard (CB 58). It was plainly focussed, as brief as it was, on her not having been able to undertake employment in Australia, and was therefore in need of financial assistance.
As to additional submissions before the Court, the Tribunal plainly did look to other circumstances, such as levels of education, work experience, availability of work, economic viability and the impact on the applicants’ relationship ([92] at CB 115).
In all, ground two is not made out.

Ground Three

In ground three the applicants complain that the Tribunal misapplied the real chance test ([78] at CB 112) when it found that the applicants’ families did not “… actually intend to carry out these threats…”, with reference to the threats of harm said to have been made by their families ([78] at CB 112).
Paragraph [78] is in the following terms:
“The Tribunal is not satisfied however, that the applicant’s or his wife’s family actually intend to carry out these threats. Instead, the Tribunal is of the view that the threats appear to have been designed to encourage the applicant and his wife to end their relationship initially, and then to keep away to avoid bringing shame upon the family in the local area, not to physically harm or kill them. At the hearing it was clear that the threats were that they not return to their local villages and bring shame upon family members living there. Also, the Tribunal is of the view that the fact that the applicant and his wife did not leave India for almost four years after not equate with a strong subjective fear of persecution. The evidence before the Tribunal suggests that that the applicant’s family and his wife’s family are angry with them, want them to end the relationship or keep away; that is why they threatened the applicant and his wife, but it does not suggest that they were serious about carrying out the threats and that the applicant or his wife has any greater harm to fear from their families.”
In written submissions the Tribunal’s error is said to be that the Tribunal was obliged to consider the risk of harm, and future risk, by reference to the test of whether “there is a real threat of persecution.” This is said to be satisfied “… even though the possibility of the persecution occurring is well below fifty-percent...” (Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) [1997] HCA 22; (1997) 191 CLR 559; (1997) 144 ALR 567 (“Guo”) at 571-2 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ).
The remainder of the written submissions appear, in part, to have been “misplaced” from ground two, although the arguments have some links. To that extent they have been dealt with above.
In the remainder they really do not advance the applicants’ argument beyond what is reported at [85] above. That is, the Tribunal “speculated” and applied a “balance of probabilities test”, giving rise also to an expression of such doubt as to require consideration as if the applicants’ claims may be true. It was never made entirely clear beyond assertion in submissions how the “speculation” was said to give rise to the “what if I am wrong test?”
As to the latter, I cannot see that the Tribunal’s analysis at this point was attendant with such doubt such as to give rise to the “what if I am wrong test?” (See Guo and Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220.)
The problem for the applicants now on this ground is that the underlying assertion is not supported by, at least, a fair reading of the Tribunal’s relevant analysis.
Paragraph 78 (at CB 112) must be read in context of the Tribunal’s analysis. That is especially in light of what immediately precedes it at [77] (at CB 112), and what immediately follows at [79] (at CB 112).
Despite concerns, the Tribunal accepted the plausibility of some threats claimed to have been made by the applicant’s family. This was said to be so in the context of tensions between the DSS and Sikh communities in the Punjab, and marrying against his family’s wishes.
But the Tribunal found that even in these circumstances they did not actually intend to carry out the threats. Importantly, the Tribunal gave reasons for this finding. These reasons largely arose from its understanding of the nature of the threats made, as they were put in evidence by the applicants at the hearing. The Tribunal found, as was reasonably open to it on what was before it, that the families were angry with the applicants, and wanted them to “keep away” from the village to avoid bringing shame on the families.
In relation to the applicant’s wife’s family, as referred to above (at [44]) the claims in relation to her family did not rise above one of rejection or ostracism. The Tribunal dealt with this.
Part of its reasoning was also that the families disowned them but the applicants did not leave India for four years. This, it was found, did not equate with a subjective fear of persecution.
There are two necessary elements to establish a well-founded fear of persecution. This phrase contains both a subjective and an objective requirement (Chan Yee Kin at [16] per Dawson J and Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”) at 263). Therefore, in the absence of the necessary subjective requirement the applicants’ claimed fear of persecution could not be said to be well-founded.
Further, at [79] (at CB 112) the Tribunal makes it clear that the relevant test also includes the element of “serious harm” (s.91R of the Act), and the risk needing to be more than “remote.” Both of which were not met in the circumstances as presented.
I cannot see that the Tribunal applied any “balance of probabilities test”. The applicants’ submissions before the Court on this issue suffered from a difficulty in separating out claims made by the applicants which were not accepted by the Tribunal (for example, the 13 to 15 sword wielding men), and those that it did (for example, the threats by the families which, on the evidence accepted, never rose above “threats” stated).
In this light the applicants’ ground, as submitted by Ms Stone, is really an attempt to cavil with the merits of the Tribunal’s decision. In short, it seeks impermissible merits review (Wu Shan Liang) and is not made out also for that reason.

Conclusion

With the benefit of legal representation, the applicants have put forward three grounds before the Court. None of the grounds as explained in submissions reveal jurisdictional error in the Tribunal’s decision. On this basis the application to the Court should be dismissed. I will make an order accordingly.

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date: 20 January 2012