SZQVA v Minister for Immigration
[2012] FMCA 561
•6 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQVA v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 561 |
| 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 the decision was arbitrary, capricious, irrational and illogical and the Tribunal failed to make independent findings. |
| Migration Act 1958, ss.424A, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Buck v Bavone (1976) 135 CLR 110 Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 SZOOR v Minister for Immigration & Citizenship [2012] FCAFC 58 |
| Applicant: | SZQVA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2519 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 1 June 2012 |
| Date of Last Submission: | 1 June 2012 |
| Delivered at: | Sydney |
| Delivered on: | 6 July 2012 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Mr P. Knowles |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2519 of 2011
| SZQVA |
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 12 November 2006 as the holder of a temporary business visa. On 19 December 2006 he lodged an application for a protection visa claiming to fear persecution in India because of his political opinion. His application was refused by a delegate of the first respondent (“Minister”) on 19 March 2007. 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.
The Tribunal decision the subject of these proceedings is the third such decision relating to the applicant. A decision of the Tribunal (“first Tribunal”) dated 12 June 2007 was quashed by consent in this Court on 19 September 2007. On 6 May 2008 a differently constituted Tribunal (“second Tribunal”) also affirmed the delegate’s decision. On 31 July 2009 this Court dismissed the applicant’s application for review of the second Tribunal’s decision but on 12 November 2009 that Tribunal decision was quashed by the Federal Court and the matter again remitted to the Tribunal. On 19 October 2011, in the decision the subject of these proceedings, a differently constituted Tribunal (“third Tribunal”) once again affirmed the decision of the delegate.
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 5-35 of the third Tribunal’s decision. Relevant factual allegations are summarised below.
Protection visa application
The applicant made the following claims in his protection visa application and in a statement attached to that application:
a)in 1999 he started working for the Indian National Lok Dal (“INLD”), a political party, as an assistant administrative officer in Nilokheri, a few kilometres from his home. He was promoted to “deputy block officer” in 2000 and to “block officer” in September 2004. His duties included canvassing, organising party leaders’ speeches, installing banners and collecting party donations;
b)during the 2005 elections, whilst he was inspecting polling stations, he fought with supporters of the Congress Party candidate in Nilokheri, Jai Singh Rana, who had been casting absentee votes. He reported them to the election commission and as a result they gave him a warning;
c)whilst travelling on his motor cycle a few weeks after the election, he was severely beaten by a group of about seven people. He recognised two supporters of Mr Rana. They accused him of collecting money from local businessmen and demanded that he return the money otherwise he would be killed;
d)he reported the matter to the police three days later but the station house officer (“SHO”), Jia Singh, told him to bring him all the accounts of the donations he had collected or he would be charged. A few days later the police came to his house in search of the accounts and questioned his family. They took him to the police station where he was beaten;
e)he was unable to tell the police anything because he had not kept any accounts. They released him after three hours and threatened that if he did not submit the accounts in two days they would detain his family;
f)the police harassed his parents, beat his father and told him to produce the applicant to them or they would detain him (the applicant’s father); and
g)in April 2005 he went to live in hiding in Delhi and in May 2006 he left India.
At the hearing before the first Tribunal on 12 June 2007 the applicant also claimed that the INLD candidate in Nilokheri in the 2000 elections was Dharam Pal and that Rajinder Singh was the candidate in 2005.
Second Tribunal
At a hearing before the second Tribunal on 2 November 2007 the applicant made the following claims:
a)initially his job with the INLD involved arranging for banners, telling people about the party and convincing them that it was a good party. Later it expanded to involve arranging for speeches to be given and for funds, including donations, to be collected;
b)he went to the police two or three days after he was injured and then four or five days later the police came to his house, took him to the police station and detained him for two days. The SHO at the police station where he went to report his assault was also called Jai Singh Rana;
c)he lived in Delhi and Uttar Pradesh before leaving India but he was not sure for how long. He had no problems in either place but had been scared and had not gone out; and
d)his brother had been threatened because of him and was beaten twice, first on an unknown date and secondly in September or October 2007. His brother had gone to the police but they did not help him. Members of the Congress Party had accused his brother of stealing alcohol.
At the second Tribunal’s hearing the applicant submitted two medico-legal reports dated 16 January 2007 and 19 September 2007 relating to injuries his brother had sustained. He also produced a document in Hindi which he claimed related to a false case brought against his brother for robbing a liquor store on 18 September 2007.
On 3 December 2007 the applicant submitted to the second Tribunal a translation of an article appearing in a newspaper dated March 2005. The article reported that after the change of government the applicant had been beaten by Congress Party members who demanded that he surrender money he had collected for the INLD. The article further stated that the applicant was taken to the police station and tortured in the presence of the local member of the legislative assembly (“MLA”) Jai Singh Rana before being released with directions to deposit money with the local MLA in three days. On 16 January 2008 the applicant submitted a further article also dated March 2005 from the same newspaper in which Kanawal Jai Singh Rana, described as the “newly elected consular of Nilokheri”, said he would “never spare” the applicant.
DFAT inquiries
On 8 January 2008 the second Tribunal asked the Department of Foreign Affairs and Trade (“DFAT”) to make inquiries in relation to the first newspaper article submitted by the applicant. In a response dated 5 February 2008, DFAT stated that it contacted Mr K D Sharma, the editor of the Dainik Sandhya – Vyom Kesh Times, a local Hindi language newspaper in Karnal, Haryana. Mr Sharma verified that the article submitted by the applicant was in fact published by the newspaper on 1 March 2005. Mr Sharma said that the incident occurred on either 28 February 2005 or 1 March 2005 after the INLD had lost the elections and the Congress Party had come to power. He said that the Congress Party had attempted to acquire from the applicant money he had collected as donations for the INLD and that the applicant was forcibly taken to the local police station and beaten in front of the local MLA before being released with a demand to provide 200,000 rupees to the MLA within a few days. The DFAT report stated that Mr Sharma believed that the local police had not registered any complaints about the incident because they were involved with the Congress Party and if a case was registered, they would have been obliged to take action.
The DFAT response also stated that it had contacted the security division of the Karnal police and was told that no incident such as that claimed by the applicant was recorded.
In response to a s.424A letter from the second Tribunal inviting him to comment on the advice supplied by DFAT, the applicant provided a letter to the Tribunal on 28 February 2008 in which he stated that the police only wrote reports if they were bribed or faced political pressure. The applicant submitted that the police always supported the ruling party. He further submitted that as the Tribunal had disclosed his whereabouts to the police in India, he was afraid he would be prosecuted if he returned.
On 21 February 2008 DFAT provided the second Tribunal with a copy of the Dainik Sandhya – Vyom Kesh Times dated 1 March 2005 which it had received from Mr Sharma. In its covering message DFAT stated that although the article was supposedly printed in 2005, the copy of the newspaper provided to it appeared fresh and retained a strong smell of typographical paint. The message also stated that as Mr Sharma was the only contact at the newspaper, DFAT was unable to verify the date of printing from other sources.
In light of the applicant’s allegation that the details of his whereabouts had been disclosed to the police in India, the second Tribunal sent a further inquiry to DFAT asking for the details of its inquiries. The Tribunal also requested that DFAT make further inquiries of the INLD, local human rights monitors and local media to ascertain whether the incident claimed by the applicant had taken place. On 4 April 2008 DFAT provided the Tribunal with the following advice:
a)no information was found in relation to the incident in online archives of The Tribune newspaper, a publication published widely in Haryana and Punjab. Sanjay Malik, a reporter for The Tribune for twenty years did not recall any such incident and did not report on such incidents or hear about it from colleagues working for other print media. Mr Malik stated that Dainik Sandhya – Vyom Kesh Times was “not a valued newspaper” and was “not in demand by the residents at all”, with a maximum circulation of three hundred copies;
b)Narender Sangwan, the district president of the “INDL”, stated that the Congress Party took over in March 2005 although he could not remember the exact date. He stated that no beating of an “INDL” party member by Congress Party members had taken place. He verified with other “INDL” party workers that no such incident had taken place;
c)Ved Prakash, the district public relations officer in Karnal, Haryana since 2003 stated that he was not aware of the incident claimed by the applicant. None of his staff members were aware of it either; and
d)the applicant’s details, his whereabouts and the fact of his protection visa application were not disclosed at any stage of DFAT’s inquiries to the police or to any other sources. The police were asked if they were aware of any incidents in Karnal, Haryana and nearby districts in which an “INDL” party member was beaten by Congress Party workers and forcibly taken to the police station in 2005 and no further information was provided.
On 7 April 2008 the second Tribunal wrote to the applicant inviting him to comment on the further advice provided by DFAT. On 28 April 2008 the applicant sought an extension of seventy days within which to respond, an extension which the Tribunal refused to grant.
Third Tribunal
In a letter dated 4 January 2009 and received by the third Tribunal on 5 January 2010, the applicant repeated the claims he had made in his statement accompanying his original application. On 12 January 2010 the Tribunal wrote to the applicant pursuant to s.424A inviting him to comment on information it considered would be the reason or part of the reason for affirming the decision under review.
In a submission dated 2 March 2010 in response to the Tribunal’s s.424A letter the applicant’s representatives attached:
a)a statutory declaration dated 2 March 2010 from the applicant;
b)some country information; and
c)a copy of a letter dated 23 August 2008 from Rajinder Singh and Ram Kumar of the INLD in District Karnal stating, among other things, that the applicant was a worker of the INLD and had been tortured by the police at the request of the Congress Party MLA.
In his statutory declaration the applicant said:
a)he had not collaborated with Mr Sharma on the article in the Dainik Sandhya – Vyom Kesh Times and did not know where Mr Sharma got his information. He submitted the article because it was the only one he could find which reported on the assault on him. His version of events was the correct one;
b)the SHO at the police station had the same name as the Congress Party MLA for Nilokheri, Jai Singh Rana;
c)the second Tribunal had referred to the INDL and he was confused as to whether it was referring to the Indian National Dalit League or the Indian National Lok Dal; and
d)in 2005 Mr Malik was only a clerk and not a reporter for The Tribune.
A hearing was held on 7 April 2010 and the applicant made the following additional claims:
a)he had applied for a new passport but had not received one. He was told that as he had applied for a protection visa he could not be given a passport;
b)he had not kept contact with his family since 2007 because he was afraid that they might be harassed and give away his whereabouts;
c)a few days after he was assaulted and reported the matter to police, “some people” came to his home and took him to the police station where he was beaten and detained for two or three hours. He sought the assistance of Dharam Pal Singh who said he would sort the problem out but had not done anything. The INLD MLA until the election in 2005, Rajinder Singh, had been aware of what had happened but had not been able to do anything;
d)he had not had a desk at the Nilokheri office of the INLD; he had just gone there in the mornings to collect leaflets and had then gone out to different villages. He had had receipts for the donations he collected but had handed the receipt book and the money to the office;
e)he left India because he was scared of the police. When they released him they had told him that they would harass him again;
f)when he was living in Delhi, he had gone to other places but his travel agent had been with him all the time. He had rarely gone out but when he did the agent accompanied him;
g)he could not relocate to another part of India as the police would be able to find him because of his language; and
h)Jai Singh Rana would still pursue him if he returned to India because of the polling booth incident in the 2005 election.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the third 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”).
For the following reasons the Tribunal found that the applicant was untruthful and not credible in his claims about what happened to him in Haryana:
a)the applicant’s knowledge of the INLD’s work was not that of someone who had been working for the party for five years and whose job involved convincing people about the party’s work. Further, his mistake in relation to the name of the INLD candidate in the Nilokheri constituency at the 2005 election cast doubt on his claims that he had worked for the party for five years;
b)there were inconsistencies in the applicant’s evidence about whether the SHO at his local police station was Jia Singh or Jai Singh Rana, a name the same as that of the Congress Party MLA for Nilokheri; whether he was released from police custody after three hours or after one or two days; and whether he had lived in Delhi from April 2005 until May 2006 or whether he had also lived for some of that period in Uttar Pradesh. The Tribunal did not consider these inconsistencies to be minor. It considered that they cast doubt on whether the applicant was being truthful in relation to those events;
c)the account of the applicant’s assault in 2005 given in the Dainik Sandhya – Vyom Kesh Times and by Mr Sharma, its editor, was significantly different from the version given by the applicant. Based on the applicant’s evidence that he was attacked by members of the Congress Party a few weeks after the Congress Party came to power and on information that the election results were declared on 27 February 2005, the Tribunal found that the applicant was attacked in the middle of March at the earliest, not 28 February 2005 or 1 March 2005 as suggested by the newspaper items and Mr Sharma. In addition, the Tribunal noted that the applicant’s evidence was that he was taken to the police station and beaten some days after the attack whereas Mr Sharma stated that this occurred on the day of the attack. The Tribunal found that the applicant’s evidence cast doubt on Mr Sharma’s evidence because, on the applicant’s evidence, the relevant incidents did not take place until after Mr Sharma supposedly reported on them. The Tribunal concluded that the purported newspaper items which the applicant produced and the evidence which Mr Sharma gave to DFAT did not corroborate the applicant’s evidence but contradicted it;
d)Mr Sangwan’s evidence cast doubt on the applicant’s claim that he was severely beaten by Congress Party members and at the police station. The Tribunal considered that if the applicant’s version of events were true, Mr Sangwan as district president of the INLD, and other party workers to whom he spoke, would have recollected an INLD block officer being beaten by the Congress Party and taken to the police station;
e)the Tribunal noted that the applicant did not provide any evidence to support his claim that Mr Malik had only been a clerk at The Tribune and it preferred Mr Malik’s evidence to DFAT that he had been a reporter for The Tribune for twenty years. The Tribunal considered that if the applicant’s claims had been true, someone like Mr Malik and the colleagues to whom he referred as working for other print media would have recollected that there had been a dispute between the INLD and the Congress Party after the 2005 elections;
f)the Tribunal referred to information available to it that fraudulent documents of all sorts were readily available in India and that even when attempts were made to verify such documents it was impossible to be sure that the person verifying the document had not been paid. Having regard to this information, the Tribunal considered that as the editor of a newspaper with a maximum circulation of three hundred, Mr Sharma could easily have been paid to print the articles and also to verify them to any inquirers;
g)the Tribunal found that the availability of false documents in India and the applicant’s failure to mention to the first Tribunal his claims that his brother had been attacked and falsely accused of robbing a liquor store because of him cast doubt on the claims concerning his brother; and
h)the Tribunal gave greater weight to the problems in the applicant’s evidence than it did to the letter from Rajinder Singh and Ram Kumar.
The Tribunal did not accept any of the applicant’s central claims. Having rejected those claims and having had regard to its findings on the applicant’s credibility, the Tribunal did not accept that his brother had been attacked or had had a false case brought against him because of the applicant. The Tribunal thus did not accept that there was real chance that the applicant would be persecuted for reasons of his real or imputed political opinion in favour of the INLD or opposition of the Congress Party if he returned to India.
The Tribunal found that DFAT had not released to the police in Haryana any information about the applicant’s identity, his whereabouts or his application for a protection visa. Given its adverse credibility findings, the Tribunal did not accept the applicant’s evidence that he had been informed by the Indian consulate that they could not give him a passport because he had applied for a protection visa. The Tribunal thus did not accept that there was a real chance that if the applicant returned to India he would be persecuted for reasons of any political opinion imputed to him because he had applied for refugee status in Australia.
Proceedings in this Court
In the application commencing these proceedings the applicant alleged:
1.The member of the Refugee Review Tribunal did not consider the corroborative evidences which I provided.
2.The Tribunal member has failed to consider my job duties as described in paras 35-38.
3.The decision of the Refugee Review Tribunal is arbitrary, capricious, irrational and illogical.
4.The Refugee Review Tribunal has made an error of law for not considering me as a political worker merely on the basis of my junior position in the party.
5.The Refugee Review Tribunal is in error in suggesting me that I could settle in any other State of India and thus escape from persecution. India is a one country and my relocation in India cannot protect me from the persecution of authorities. Where ever I live in India my life is in danger.
6.The Refugee Review Tribunal has failed to provide me natural justice by failing to make any independent findings. The findings Tribunal has relied are not exhaustive and are contradictory.
(errors in original)
The applicant made further allegations in the affidavit filed with the initiating application.
Ground 1
The applicant alleges that the Tribunal did not consider evidence which he had adduced and which he said was corroborative of his account. Neither in his application nor in his oral submissions at the hearing of this matter did the applicant identify which evidence of a corroborative nature had been overlooked by the Tribunal. The evidence presented by the applicant which was purportedly corroborative of his account was the two newspaper articles, the documents produced to the Tribunal concerning the applicant’s brother, country information from Human Rights Watch, Transparency International India – Centre for Media Studies and the US State Department, and the letter from Mr Singh and Mr Kumar. This information was considered at paras.129-136 and 147-157 of the Tribunal’s decision.
On the facts, this allegation is not made out.
Ground 2
The second allegation is that the Tribunal did not consider the applicant’s job duties as described in paras.35-38 of its summary of the evidence before it. Those duties are rehearsed above at [8(a)]. Contrary to the applicant’s allegation, those duties were canvassed by the Tribunal in that section of its decision record under the heading “Findings and Reasons” at paras.112-115. Further, this evidence was taken into account when the Tribunal reached its conclusion that the applicant had not worked for the INLD as he claimed, the Tribunal considering that the applicant’s knowledge of the party was not proportionate to the involvement which he alleged he had had. Far from not considering the applicant’s evidence of his job duties, the Tribunal partly relied on that very evidence to conclude that the applicant’s claim of political involvement was not to be accepted.
Ground 3
No particulars of the allegation that the Tribunal’s decision was arbitrary, capricious, irrational and illogical were provided in the application, although, as submitted by the Minister, it might be concluded that the applicant provided some detail supportive of this allegation in paras.9-11 of his affidavit. In the context of an inquiry he made of the office of a member of the New South Wales Legislative Assembly and of the Tribunal’s statement:
I may take the view that the applicant’s knowledge of the party is not what one would expect of someone who had been working for the party for five years and whose job involved convincing people about the party’s work …
the applicant deposed:
About 2 weeks ago I went to the office of Mr Tony Issa State Parliament member for Granville and asked one of the officers working in the office to tell me the dates when Mr Peter Debnam was the party head of Liberal party of NSW. The officer could not reply and asked me to wait while he checked on the computer to give me the reply. Merely because he could he [sic] he could not recollect some dates I cannot challenge that the officer was not working in the Liberal Party.
As Deane J explained in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367:
If a statutory tribunal is required to act judicially, it must act rationally and reasonably. Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to decide arbitrarily, irrationally or unreasonably. It requires that regard be paid to material considerations and that immaterial or irrelevant considerations be ignored. It excludes the right to act on preconceived prejudice or suspicion.
In Buck v Bavone (1976) 135 CLR 110 at 118 Gibbs J said:
It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it.
More recently, in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 Crennan and Bell JJ said at 647-648 [130]:
In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
Illogicality such as to amount to jurisdictional error will not be shown where the Tribunal’s conclusion is one upon which reasonable minds might differ or where it cannot be said that there was no evidence before the Tribunal upon which the decision could have been based: SZOOR v Minister for Immigration & Citizenship [2012] FCAFC 58 at [85] per McKerracher J, Reeves J agreeing. In light of the summary of facts before the third Tribunal and the bases of its decision, summarised above at [6]-[20] and [22]-[24] respectively, I find no basis to conclude that its decision was illogical or irrational. It was reasoned, logical and expressly based on evidence which was before it. For those reasons it was also not arbitrary or capricious.
Ground 4
I accept and adopt the Minister’s submissions in relation to the fourth ground of the application:
This ground of review is misconceived. The Tribunal did not find that the Applicant was not a political worker because he held a very junior position in the INLD. Rather, the Tribunal simply did not believe he was telling the truth about his involvement or employment with the INLD.
Ground 5
Similarly, the applicant’s allegation that the Tribunal erred in relation to a finding on relocation within India was misconceived. Although the issue of relocation had been raised during the course of its hearing, and earlier, the third Tribunal’s decision did not turn on this issue. It found that the applicant had no well-founded fear of persecution in India for a Convention reason and, because of this, it had no need to consider, and made no finding on, the reasonableness and practicability of the applicant relocating from his home area to somewhere else in India.
For these reasons, the fifth ground of the application discloses no basis upon which the Tribunal’s decision might be set aside.
Ground 6
The allegation that the third Tribunal failed to make independent findings of its own implies that it adopted the earlier Tribunal decisions or the decision of the Minister’s delegate without engaging in its own process of reasoning. While there is some commonality in the findings made by the third Tribunal and the findings of the delegate and the first and second Tribunals, it is also the fact that the third Tribunal had evidence available to it which had not been available on the earlier occasions and which was taken into account when reaching the decision presently under review. The fact that this information was taken into account by the third Tribunal points to there having been a fresh consideration of the applicant’s claims. Further, notwithstanding the commonality of some of the findings, the detailed consideration given by the third Tribunal to the applicant’s review gives me no cause to doubt that it arrived at its findings and ultimate conclusion by its own independent and thorough consideration of the claims, evidence and arguments placed before it.
The further allegation made in the sixth ground of the application, that the Tribunal’s findings were not exhaustive and were contradictory, lacks any meaningful substance because it was not particularised and was not the subject of submissions at the hearing of this matter. Even so, a review of the extremely detailed decision record in question does not suggest that any claims, evidence or arguments were overlooked or not addressed and a consideration of the Tribunal’s statement of reasons under the heading “Findings and Reasons” does not support a conclusion that any one finding contradicted another.
Affidavit
In paras.6-7 of his affidavit sworn 7 November 2011 the applicant stated that the Tribunal had failed, in its “Findings and Reasons”, to take note of his evidence of his work as a block officer for the INLD set out in paras.35-38 of the decision record. He deposed:
… My work as a block officer was to canvass for my party which involved raising banners, imparting lectures, meeting with the people to apprise them about the future policies and accomplished deeds of the party. I also collected donations for the party. My job also involved arranging speeches for the senior members of party such as Mr Om Parkash Chautala who was the party head and was once the Chief Minister of Haryana.
This is not quite what the applicant said to the Tribunal as recorded at paras.35-38 of the decision record. Importantly, however, what he is recorded as having said there was discussed by the Tribunal at paras.108-118 of its decision record under the heading “Findings and Reasons”. In any event, relevantly, the Tribunal’s decision was not based on whether it accepted the detail of the work the applicant alleged he performed for the INLD but on the doubt which the applicant’s lack of political knowledge threw on those allegations.
In para.8 of his affidavit the applicant stated that the Tribunal had “selected some of [his] responses in the hearing and [had] intentionally ignored the other facts”. The applicant did not identify what facts were supposedly ignored and for the reasons already given I am not satisfied that any were.
In para.12 of his affidavit the applicant raised an issue arising out of the following proposition put to him by the Tribunal at the hearing on 7 April 2010:
I put to the applicant that it did not appear that anyone else in the INLD had been scared.
The applicant said in his affidavit that this proposition was a baseless assumption and that the Tribunal had no evidence that no other INLD member was in trouble. He did not indicate why any factual error on the Tribunal’s part, as postulated, would lead to the Tribunal’s decision being affected by jurisdictional error. In any event, in the sentence in question the Tribunal was doing no more than indicating that there was no evidence before it to suggest that other INLD workers had been scared as a result of the incident in question, namely the dispute at the polling booth in 2005 when INLD and Congress Party workers came into conflict. This was a factual statement or conclusion which, in the circumstances, it was open to the Tribunal to make. In any event, it was put to the applicant to give him an opportunity to refute it.
Paragraphs 13-16 of the applicant’s affidavit raised disputes with factual conclusions reached by the Tribunal. Each of the conclusions in question was open to the Tribunal and no jurisdictional error is disclosed by the matters these paragraphs raised.
The final paragraph of the affidavit asserts that the Tribunal incorrectly recorded one part of what the applicant had said at the hearing on 7 April 2010. In his affidavit he said in this connection:
In Para 85 the member records, “The applicant said that then he had gone to the Taraori police station to lodge a complaint but Jai Singh Rana SHO had told him that…” I did not say this wording because Jai Singh Rana was not the SHO (Station Head Officer) The members has not recorded my replies correctly.
No evidence was adduced to support this assertion.
The applicant now denies that Jai Singh Rana was the station head officer at the relevant police station and thus says that he could not have said that he was, as recorded at para.85. However, the applicant had said the same thing at the second Tribunal hearing on 2 November 2007, as recorded at para.44 of the decision record presently under review, but has not disputed the correctness of that part of the narrative of the evidence. The applicant also expressly stated in his statutory declaration of 2 March 2010, referred to above at [19] that the name of the SHO was Jai Singh Rana.
As the applicant made the claim about Jai Singh Rana to the second Tribunal and in his statutory declaration of 2 March 2010, I conclude that he is likely to have made the same claim at the third Tribunal’s hearing. I am not satisfied that the passage from the third Tribunal’s hearing was incorrectly recorded as alleged.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 6 July 2012
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