SZQQY v Minister for Immigration
[2012] FMCA 549
•29 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQQY v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 549 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal. ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it breached s.424A of the Migration Act 1958, did not afford procedural fairness, failed to consider a claim, failed to consider corroborative evidence and failed to make inquiries. |
| Migration Act 1958, ss.422B, 424AA, 424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164 Swift v SAS Trustee Corporation [2010] NSWCA 182 Minister for Immigration & Citizenship v SZNSP (2010) 184 FCR 485 Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 |
| Applicant: | SZQQY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2118 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 19 June 2012 |
| Date of Last Submission: | 19 June 2012 |
| Delivered at: | Sydney |
| Delivered on: | 29 June 2012 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2118 of 2011
| SZQQY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India who arrived in Australia on 3 December 2010. On 14 January 2011 he applied to the Department of Immigration and Citizenship for a protection visa, alleging that he feared persecution in India by reason of his political opinion. On 14 April 2011 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-19 of the Tribunal’s decision. Relevant factual allegations are summarised below.
Protection visa application
The applicant made the following claims in a statement provided in support of his application for a protection visa:
a)he had been an active member of the Communist Party of India (“CPI(M)”);
b)the Bharatiya Janata Party (“BJP”) was the majority party in his area;
c)in March 2008 he was threatened by “BJP gundas”. They told him that if he did not leave the CPI(M) “he could not live normally”;
d)on 14 April 2008 while coming home from work he was attacked by a group of people and was hospitalised for two weeks. His friends and family were also attacked;
e)his family asked his brother-in-law to arrange a visa for Oman. In the meantime, he stayed with a friend in Bangalore. However, the “gundas” learned of his whereabouts and warned his friend to send him (the applicant) home;
f)in June 2008 he moved to Muscat in Oman. He lived normally for two years but then bumped into some BJP and Rashtriya Swayamsewak Sangh (“RSS”) members in the market. They told their local members who then approached the applicant’s company and searched his residence; and
g)he went to the Netherlands because he no longer felt safe in Muscat but was unable to settle there because of visa issues. He returned to Muscat after three days and then applied for a visa to come to Australia so that he could seek protection.
Interview before the delegate
The applicant was interviewed by the delegate on 24 February 2011. He also claimed the following:
a)the company for which he worked in Oman was owned by his brother-in-law;
b)he was a member of the CPI(M)’s student wing from 1976. In 2003 he obtained CPI(M) membership;
c)he was traced to Oman. In May 2010 one of his attackers in India saw him in a market in Oman. Subsequently, people came to his workplace to enquire about his whereabouts. They tried to harass him;
d)he had to have a local sponsor under Oman law. When his sponsor became aware of his problems, he could no longer continue in his job; and
e)he travelled to the Netherlands in March and April 2010 because of the problems he had had in Oman.
After his interview with the delegate the applicant provided uncertified copies of two medical certificates, a hospital account and a newspaper clipping.
Tribunal hearing
The applicant’s hearing before the Tribunal occurred over two days, 3 and 11 August 2011.
On the first hearing day the applicant provided the Tribunal with a document entitled “Proclamation requiring the appearance of a person accused” at court on 22 August 2011 to answer a complaint following failure to execute an arrest warrant (presumably in respect of the applicant). Also provided was an affidavit from the applicant’s wife stating that the applicant had had political issues in their local area and was currently being sued in the Indian courts for the recovery of various business debts. She stated that “[t]he party people” filed these cases to get the applicant to come back to India and that non-bailable warrants were pending in respect of them. An affidavit from the applicant’s daughter, essentially repeating these claims, was also provided.
The applicant made the following claims at the hearing on 3 August 2011:
a)he joined the CPI(M) in 1981 or 1982 but did not become a fully fledged member until 1992. He did not hold any position within the party;
b)he worked for the party during election time, visiting people from house-to-house. He was able to convince people to leave the BJP and to support the CPI(M), which was why the BJP targeted him;
c)he received his first oral warning from the BJP in December 2007. He said later that he had been manhandled and physically attacked in the incident but then said that it had only been a “verbal clash”, the physical attack being in 2008;
d)he was subjected to several verbal attacks in 2007 which he treated seriously;
e)he ran a wristwatch business in the three or so years prior to his departure from India in June 2008. He did not have a shop but operated his business in Bombay, Madras, Bangalore and Calicut;
f)after he was attacked by the BJP he was afraid to go outside to conduct his business and, as a result, had to scale it down little by little. He started reducing his business in August or September 2007 and by January 2008 it had been greatly reduced;
g)he developed financial problems after he reduced his business. The cases which had been filed against him were the result of his inability to continue with his business because he was being targeted;
h)his employer in Oman was also his sponsor. His brother-in-law was in a partnership with this person and owned shares in the company;
i)in February or March 2010, while in Oman, he met two people from his village who were connected to the BJP. They went to the applicant’s sponsor and told him that the applicant was a murderer in India. He became apprehensive and left his job about a month later, in March or April 2010;
j)he made a mistake when he told the department that he was seen in Oman in May 2010. It could have been in April or May, although he was not sure.
At the resumed hearing on 11 August 2011 the applicant also claimed that:
a)the people who saw him in Oman came from the same locality as he did. He had not had problems with them in India but they were strong supporters of the BJP;
b)he was seen by the BJP supporters in Oman in late December 2009 or early January 2010;
c)after his sponsor was visited by the BJP supporters, he (the applicant) stopped going to work and refused to take his sponsor’s calls because he feared that information would find its way to his home. Subsequently, and in order to “cover himself”, his sponsor placed a missing persons notice concerning the applicant in the local newspaper, a copy of which he had provided to the department. That article (as translated by the interpreter) relevantly stated that the applicant had been missing for about a week from 9 February 2010;
d)the newspaper article did not affect his Omani visa or his ability to live in Oman;
e)in June 2010 his Omani visa was renewed for a further two years. His brother-in-law had asked his sponsor to facilitate the renewal of his visa and the sponsor agreed to do so even though the applicant was no longer working for him at the time; and
f)he was able to renew his passport in Oman.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the applicant gave inconsistent evidence about when he became a member of the CPI(M). He told the Tribunal that he became a fully fledged member in 1992 but at the departmental interview he had said that he obtained his CPI(M) membership in 2003;
b)the applicant’s evidence about the process for joining the CPI(M) was not consistent with the process outlined in the party’s constitution. Although the Tribunal was prepared to accept that there might be variations in the membership process at the local level and that various changes had been incorporated into the constitution since its adoption in 1968, the process of becoming a member as outlined by the applicant bore no resemblance at all to the process set out in the party’s constitution;
c)the applicant gave inconsistent evidence about when he was first threatened and attacked in India. He told the Tribunal that he was first threatened in 2007 but made no mention of this incident in his statement to the department, referring instead to an incident in 2008. When questioned by the Tribunal about these threats the applicant provided vague and evasive answers, initially saying that he had been manhandled and physically attacked in 2007 but later saying that it had only been a verbal clash with the physical attack occurring in 2008;
d)the Tribunal did not accept that the applicant reduced his business because he was frightened to go outside as a result of threats he had received from the BJP or the RSS because it concluded that the reasons he gave for doing so were not credible. The applicant claimed that he started to scale down his business in August or September 2007, before he was threatened (in December 2007) or physically attacked (in April 2008). The Tribunal formed the view that the applicant scaled down his business because it was not doing well, that problems in his business led to the court cases against him, that he was prompted to leave India because he had little work and that he went to Oman because his brother-in-law offered him employment. In the Tribunal’s view, the applicant fabricated his claim that he wound down his business and went to Oman because he feared threats or attacks from the BJP or RSS;
e)the Tribunal’s finding in this regard was reinforced by the applicant’s evidence that the threats he faced were from the local BJP or RSS but that his work selling watches involved him travelling to a number of centres outside his locality, such as Madras, Bangalore, Bombay and Calicut. The Tribunal found that if the applicant worked outside his locality, it did not follow that local threats would have caused him to reduce his business;
f)the Tribunal found the applicant’s account of his work in Oman very confusing and, despite repeated questioning, it had been unable to obtain from the applicant a clear account of where he lived and worked in Oman;
g)the applicant gave inconsistent evidence about when he was seen by the BJP in Oman and, in the Tribunal’s view, tailored his evidence in response to the Tribunal’s questions and in order to fit the dates in the newspaper clipping he had provided to the department:
i)at the departmental interview the applicant said that he was seen in the market in May 2010;
ii)on the first Tribunal hearing day the applicant said that he was seen in February or March 2010. When it was put to him that this was inconsistent with his evidence at the departmental interview, the applicant said that he was seen in April or May 2010 although he was not sure; and
iii)on the second Tribunal hearing day the applicant said that he was seen in December 2009 or January 2010 and that, by February 2010, he was too scared to go to work or to take calls from his sponsor, which was also inconsistent with the claim he made on the first hearing day that he stopped working in March or April 2010;
h)the applicant’s claim that he was too scared to return to work after he was seen in the marketplace and that he refused to speak to his sponsor who then declared him missing in February 2010 was not credible because, subsequent to these alleged events, the applicant was able to renew his passport in Oman, obtain a visitor’s visa for the Netherlands twice as well as a second two-year visa for Oman. The Tribunal did not accept that the applicant would have been able to obtain the visas or the passport if he was officially a missing person in the eyes of the Omani authorities. Further, given the applicant’s evidence that his sponsor wanted to appear to have discharged his obligations to the authorities, the Tribunal did not accept that the applicant’s sponsor would have agreed to sponsor the applicant’s visa for Oman if the latter was not actually working for him at the time. The Tribunal found that the applicant was working for the sponsor at the time he was granted another visa in June 2010 and did not accept that the applicant went into hiding in Oman because he was seen by BJP supporters from his village;
i)the Tribunal did not consider it credible that the applicant was traced to Oman in 2010 and threatened there by BJP members given that he:
i)only claimed to be an ordinary member of the CPI(M);
ii)had, by 2010, been out of India for two years and had not been active in the CPI(M) during that time; and
iii)claimed at the Tribunal hearing that he did not have a fixed address during his first six months in Oman.
The Tribunal found in the circumstances that it was beyond the possibilities of coincidence that two members of the BJP, a minority party in the applicant’s state and area, who happened to be from the applicant’s village, also happened to be in the same Omani marketplace as the applicant;
j)the Tribunal also considered it relevant that the BJP had negligible support in Kerala. Specifically, country information indicated that at the time the applicant was in India his party led the coalition government in Kerala while, in contrast, the BJP held no seats. Sources also indicated that the RSS and the BJP had comparatively little influence in Kerala and that the BJP had found it difficult to gain power there;
k)for these reasons, the Tribunal did not accept that the applicant had been a long standing member of the CPI(M) or that he had been threatened and attacked because of this membership or his political activities. Consequently, the Tribunal did not accept that the applicant had been targeted by the BJP or the RSS in India or in Oman; and
l)the Tribunal had regard to the medical certificate which the applicant provided to the department in support of his claim that he was attacked by the BJP in April 2008. Given its finding that the applicant had not been a member of the CPI(M), the Tribunal did not accept that any injuries the applicant might have suffered were the result of him being attacked by the BJP. Therefore, the Tribunal did not give the certificate any weight.
Proceedings in this Court
In the application commencing these proceedings the applicant alleged:
1.The Tribunal did not give to the applicant before the hearing the independent information that it had about politics in Kerala, India. The Tribunal used this information (RRT decision record pages 19 to 21). This was against section 424A of the Migration Act 1958.
2.The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusion that applicant claims were implausible, being conclusions that were not obviously open on the known material, without giving the Applicant the opportunity to heard in respect of those matters.
3.The Tribunal failed to carry out its review function and to exercise its jurisdiction.
Particulars
a.The tribunal did not consider the applicant who had been under immense and intimidating pressure from BJP members and harassed because of the membership with CPIM.
b.In relation to above the Tribunal did not consider the applicant claim that if he has to go back to India in near future BJP members will seriously harm him perhaps kill him.
4.The Tribunal constructively failed to exercise its jurisdiction.
Particulars
The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents.
In his supporting affidavit the applicant also alleged that the Tribunal’s decision was unjust and was made without taking into account the “full gravity” of his circumstances.
At the hearing of this application the applicant also submitted that the Tribunal had erred because it had not checked or inquired into his evidence concerning the CPI(M)’s membership fee or his evidence concerning a police case having been brought against him. He submitted that the Tribunal should have made enquiries in order to know what problems he was facing in India.
Breach of s.424A
Section 424A relevantly provides:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
…
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information
Information concerning the political situation in Kerala fell within the exception to the operation of s.424A(1) found in s.424A(3)(a). For this reason, the Tribunal was under no obligation to give that information to the applicant with the result that it did not err by not having done so.
Denial of procedural fairness
By virtue of s.422B of the Act, the Tribunal’s duty to provide an applicant with procedural fairness by observing the natural justice hearing rule is codified in ss.424A and 425 of the Act. Section 424A has been quoted above at [16] and s.425 relevantly provides:
425 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The applicant did not identify what information or conclusions should have been notified to him pursuant to those provisions or in what way he had been denied an opportunity to give evidence and make arguments to the Tribunal. A review of its decision record discloses that the Tribunal did not fail to meet its obligations under those sections. In relation to s.424A, other than country information which has already been discussed, the information relied upon by the Tribunal was largely information which the applicant had provided to it for the purposes of the review or had earlier expressed in writing to the Minister’s department, including the Minister’s delegate. By virtue of s.424A(3)(a) and (ba) the Tribunal had no obligation to re-put this information to the applicant. Such s.424A(1) obligations as the Tribunal did have it fulfilled at its hearing by orally notifying the applicant of information which it said would be the reason or part of the reason for affirming the delegate’s decision. Section 424AA of the Act permitted the Tribunal to discharge its s.424A obligations in this way.
As to s.425, the Tribunal discharged part of its obligations under that section by inviting the applicant to the hearing which he attended. Further, the Tribunal’s summary of its hearing, which appears in its decision record, indicates that it put to the applicant those issues arising out of the delegate’s decision which might have been determinative of the review. Indeed, the Tribunal’s ultimate rejection of the applicant’s claims on credit grounds was foreshadowed in its advice to him at the hearing that it had strong concerns that economic issues were the prime motivation for him to come to Australia.
For these reasons, the second allegation made in the application is not made out.
Failure to consider claim
The essence of the third ground of the application was that the Tribunal failed to consider the applicant’s claim to fear persecution by BJP members in India because of his membership of the CPI(M). However, the summary of the Tribunal’s reasons for its decision set out above makes clear that it did consider this claim. For this reason, on the facts, the third allegation made in the application is not made out.
Failure to consider corroborative evidence
The applicant’s assertion that the Tribunal “failed to engage in an active intellectual process” in connection with documents he had supplied as corroboration of his claims suggest an argument that the Tribunal should have been convinced by those documents and that its failure to do so demonstrated error. If so, that is an impermissible invitation to the Court to reconsider the findings of fact made by the Tribunal and upon which it based its ultimate decision. The requirement for the Tribunal to give “proper, genuine and realistic” consideration to matters is a reference to its obligation to consider an applicant’s claims, not a description of how that consideration is to be undertaken: Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164; Swift v SAS Trustee Corporation [2010] NSWCA 182 per Basten JA at [45], Allsop P agreeing.
Turning to the material which was said not to have been considered, in this case the applicant provided the following documentary material throughout the course of his visa application and review proceedings:
a)an untranslated newspaper clipping which he gave to the Minister’s delegate at the interview and which was translated by the interpreter at the Tribunal hearing;
b)two medical certificates concerning an injury to his scalp and an associated account for treatment;
c)a “proclamation” requiring the applicant to appear at court in legal proceedings; and
d)affidavits deposed by the applicant’s wife and daughter.
In relation to the untranslated newspaper clipping, which was said to be an announcement that the applicant had gone missing placed by his Omani visa sponsor, this was referred to at paras.117 and 118 of the Tribunal’s reasons where, amongst other things, it was said that the applicant had tailored his evidence concerning when he had allegedly been seen in an Omani market by BJP members and also that his evidence concerning why his sponsor might have declared him missing in February 2010 was not credible. The relevant issue for the Tribunal to determine was whether the applicant had gone into hiding because he had come into contact with BJP members in an Omani market, the newspaper article being allegedly corroborative of this claim. The Tribunal considered the evidence on this point and rejected the claim. The newspaper clipping was taken into account as part of this process and thus the Tribunal discharged its relevant obligation in connection with it.
The Tribunal referred to only one of the medical certificates and not to the account for medical services. However, the account contained no information of significance which could not also be gleaned from the medical certificates and one of the certificates was not entirely in English. The other medical certificate, to which the Tribunal referred, would appear to be the document to which the applicant also refers in his allegation. Relevantly, it said:
[SZQQY] admitted in this Hospital for an injury on the scalp one and half inch [sic] above the forehead during collision between two political parties on 14-04-2008 at 10.30 PM. He brought unconcious [sic] at that time. Injury sutured and admitted for one week.
This medical certificate was discussed in para.122 of the Tribunal’s decision but, as the Tribunal did not accept that the applicant had been attacked by the BJP in April 2008, and thus did not accept that he had required medical treatment because of that alleged attack, it gave the certificate no weight in the context of that allegation. Again, the Tribunal discharged its obligation to consider the relevant document but concluded, as was open to it, that the document had no relevant significance given that the occurrence of the event which the applicant alleged it evidenced had been rejected by the Tribunal.
The “proclamation” and affidavits of the applicant’s wife and daughter were, as mentioned above at [9], supplied by the applicant to the Tribunal at the 3 August 2011 hearing day. They were discussed at that time, a discussion paraphrased at paras.55 and 56 of the Tribunal’s decision record:
When asked about the new documents he has provided, the applicant stated that a police warrant had been sent to his address. There is a case against him because he owes rent money. There are also three other cases against him in connection with finance dealings filed by people who are not from his village but who are from Kerala. When asked if this was related to his business, the applicant stated that the first case with the warrant concerns financial dealings and he’s not sure about the other cases. When asked if his family had made enquiries on his behalf about the cases, the applicant stated that his father is deceased and his father-in-law is old and cannot work. When the police came to his home his family said that the applicant was not there.
The Tribunal explained to the applicant that a protection visa is for people who fear persecution for one of the reasons in the Convention and in general, fears arising from a failed business or proceedings regarding a business are not grounds for granting refugee status. The applicant said that he had not mentioned the arrest warrant in his application as he did not have it then but the warrant and the cases all originated from the problems he had with the opposition party. The Tribunal asked the applicant how he knows this if he is not sure of the basis of three of the cases. The applicant stated that the police had come to make enquiries about his whereabouts and had said that he had to attend court, and a warrant was issued because he did not attend. The Tribunal put to the applicant that there is no evidence that the new documents he has provided are related to his political activities. The applicant stated that there is a relationship because the cases are a result of his being unable to continue with his business because he was targeted and so he developed financial problems. The problems began when he reduced the scale of his business and now he owes money. He is also owed money but he cannot collect it because it would not be safe to do so.
Those documents were further canvassed with the applicant when the hearing resumed on 11 August 2011.
In para.114 of its reasons the Tribunal referred to the “proclamation” and observed that it related to an offence concerning passing cheques which were not met on presentation. The Tribunal went on to conclude that the court cases arose out of problems the applicant had had in his business and it did not accept that he had wound down his business because he feared threats or attacks from the BJP or the RSS. Again, the Tribunal discharged its obligations in connection with the relevant piece of evidence.
The affidavits of the applicant’s wife and daughter were referred to twice in the Tribunal’s summary of the evidence before it although not in its reasons. They were drawn in general terms to the effect that the applicant had local political difficulties, litigation involving business debts causing him to be a wanted person and “party people” were “putting cases against” the applicant to make him “come back”. Nothing contained in those affidavits addressed the particular factual allegations advanced by the applicant as the basis of his claim to fear persecution and which the Tribunal concluded were not credible. Nor did they corroborate the detail of the applicant’s evidence concerning the court proceedings. In circumstances where the affidavits had been specifically referred to by the Tribunal but also where they added nothing of substance to the applicant’s claims, their absence from the Tribunal’s reasoning does not lead me to conclude that the Tribunal had failed to consider them.
The applicant also alleged, it may be inferred, that not only had the documents in question not been considered but also that, as documents corroborative of his claims, they had been given no weight because before considering them the Tribunal had already made up its mind on his credibility and that of his claims. This argument has no relevance to the “proclamation” document or the newspaper clipping because those documents were plainly taken into account when the Tribunal reached its conclusions on the aspects of the applicant’s claims with which they were associated. Nor does it have relevance to the two affidavits or the relevant medical certificate because, as they were not independent of the person whose evidence was sought to be corroborated, ie the applicant, they were not truly corroborative of what he had said: Minister for Immigration & Citizenship v SZNSP (2010) 184 FCR 485 at 491 [35] per North and Lander JJ, Katzmann J agreeing and at 493 [50] per Katzmann J. In this connection, the affidavits were clearly not independent of the applicant and the medical certificate, even if genuine, provided no independent corroboration of the applicant’s allegation to have been attacked by the BJP, seemingly only repeating the patient history which would have been recounted to the treating doctor. Alternatively, given the Tribunal’s concerns regarding the applicant’s credibility and absent any proof of the provenance of the certificate and reliability of its author, it could have been manufactured by the applicant himself and for that reason was not, properly understood, corroborative evidence.
For these reasons, the Tribunal’s treatment of the evidence in question was not deficient as the applicant alleged.
Failure to consider gravity of circumstances
The assertion made by the applicant in his affidavit in support assumes that the Tribunal accepted that he had a well-founded fear of persecution in India for a Convention reason. As the Tribunal rejected that claim, the “gravity” of the applicant’s circumstances was not a matter which required consideration.
Failure to inquire
The applicant submitted that the Tribunal should have made enquiries to know what problems he was facing in India and, in particular, should have investigated two aspects of his allegations.
The Tribunal has no general duty to make enquiries. It was said in Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 at 1129 [25] that:
It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. (reference omitted)
However, that is not this case. Far from pointing to an obvious inquiry about an easily ascertained and yet critical fact, the applicant has suggested that the Tribunal should have undertaken unparticularised inquiries of unidentified persons in unspecified overseas locations. In those circumstances, the Tribunal did not fail to undertake its statutory duty of review and, as the applicant did not suggest that he had invited the Tribunal to make any such inquiries, it cannot be said that any decision not to undertake them was manifestly unreasonable and that the Tribunal’s ultimate decision was affected by jurisdictional error as a consequence.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 29 June 2012
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