VJAL v Minister for Immigration - [2004] FMCA 988

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VJAL & ORS v MINISTER FOR IMMIGRATION

[2004] FMCA 988

MIGRATION – Protection visa – whether real chance of persecution for Convention reason based on threats by convicted criminals – relevance of connection between convicted criminals and political party.

Migration Act 1958 (Cth), s.475A
Judiciary Act 1903, s.39B

VAT v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 255
Linett v Australian Education Union (2002) FCAFC 157
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389
VGAO of 2002 v MIMIA (2003) FCAFC 68
Re MIMIA; Ex parte S134 [2003] HCA 1
Parra v MIMIA (2000) FCA 85

Applicants:

VJAL, VJAN & VJAQ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MLG 1139 of 2003

Delivered on:

17 December 2004

Delivered at:

Melbourne

Hearing Date:

26 August 2004

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicants:

Mr M Bromberg SC with Mr M Harding

Counsel for the Respondent:

Mr C Fairfield

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The Application be dismissed.
The Applicant shall pay the Respondent’s costs fixed in the sum of $6,891.15

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1139 of 2003

VJAL, VJAN & VJAQ

Applicants

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

There are three applicants in this application. The first applicant is the husband of the second applicant and father of the third applicant daughter.
The first applicant, a male citizen of India, arrived in Australia on 1 May 2002. He lodged an application for a protection visa with the respondent on 6 May 2002. His spouse and daughter were included in his application as members of the family unit. Also included were his brother-in-law and a nephew.
On 21 May 2002 the application for a protection visa was refused by a delegate of the respondent. A separate refusal of decision was made in respect of the applicant's brother-in-law and nephew.
On 18 June 2002 the applicant sought review by the Refugee Review Tribunal (the RRT) of the decision to refuse protection visas. The first applicant attended a hearing and gave evidence before the RRT on 28 August 2002. He was accompanied by his wife and a friend who both gave evidence at the hearing.
In its decision handed down on 27 September 2002 the RRT affirmed the decision of the delegate to refuse the protection visa applications.
An application was filed in the Federal Court of Australia on 23 October 2002 seeking review of the RRT decision pursuant to s.475A of the Migration Act 1958 (Commonwealth) (the Act) and under s.39B of the Judiciary Act 1903.
The applicant then relied upon a "further amended application for an order of review" filed in the Federal Court on 22 August 2003. The application was transferred by order of the Federal Court on 15 October 2003 to the Federal Magistrates Court.
The applicant relied upon amended contentions which had also been filed on 20 August 2003.
For reasons which will become apparent, it is perhaps useful to set out extracts from the court book which provides the basis upon which the applicant for a protection visa for the applicants was originally made to the respondent and otherwise provides detail relied upon by the applicants before the RRT. In the application for a protection visa dated 8 May 2002 in response to the question, "Why did you leave that country?" the applicant states:
“I have to leave my country India because in year 1993 I was witness in one murder case & they all got seven years imprisonment & now they all are out after completion of sentence of seven years & they all are harassing me & my family & my wife was in very fear condition that two time she went mistabortion (sic) & being married to Catholic girl I am not getting any support from my family as I am Hindu. (sic)”
(Court Book page 7)
In the application for a protection visa the applicant further claims that the ex-prisoners had already assaulted one witness and went on to say the following:-
… They also try to give me threat that they will see me as I had made police complaint also to seek protection, but it is just on paper as police people in India can't protect any people forever and I can't fight with them because they all are in gang. (sic)”
(Court Book p.9)
The applicant claimed that after their release from prison the convicted men joined Shiv Sena, the ruling party in Maharashtra. The applicant claimed that the convicted men could threaten him with assault or extortion or use their political influence in Shiv Sena to avoid any official recrimination. The applicant claimed, as recited in the RRT decision, that he reported the threats to the police, but they told him they could not provide around-the-clock protection and could only act if something happened.
The applicant provided a number of statements from other witnesses involved in the murder trial to corroborate the account of the murder committed by a friend of the applicant with the victim being his brother-in-law who was another friend of the applicant. It is noted that both before the RRT and this court the applicant's spouse and daughter make no claims of their own, but rather are included as dependent members of the first applicant's family unit.
In an undated statement provided by the applicant to the RRT (court book 127-128) the following further details are provided:
“In month of Sep 2001 remaining five accused came out of jail as V… got successful through lawyer in High Court. So I came to Australia & my wife told me she's very much fearful & V, R and S give her threats that if I do not come back they do something which is not good for you all. After coming back from Australia and my wife and daughter stayed at my mother-in-law's house at V for some time & then I had rented the house at A. My baby goes to school at S.. Accused comes to know that. I go to school to reach and take my baby. So they followed me up to my residence. I came to know that they had joined Shiv Sena which is strong political party and has many branch in all over India and all accused are Maharashtra Shiv Sena help them & all came to know that they assault Y and his brother also who were witnesses & they have to remain in hospital as Y has to lost one arm and having mental problem.
My wife miscarried in Dec 2001.
On 20 Jan 2002 my mother-in-law died after a car hitting her scooter. Mr S who was driving scooter also died in that accident. Later we learned that the accident was arranged by Shiv Sena.

I was gone to Shiv Sena as they called me their office at S to meet their leader BC & at that time SB, RB and RC were also there. After discussing with Shiv Sena people I have to agree to give all five accused RS 51 ASC each. V told Shiv Sena to take my passport otherwise I will flew to USA as I had got my valid USA visa to Oct 2008. So Shiv Sena people came to my home & I have to hand over my passport & I was told to pay RS 2000 2/50000 as first instalment within one month & then to pay 250000 every three months. I was also informed me if I go to other part of India and they will caught me and they will be dangerous for me.
So I decided to leave my country with my wife and daughter permanently without informing any of my friends from M airport … (sic)”
Apart from the court book material relied upon, the parties agreed that other material should be provided to the court. The first document was a statement of the applicant's wife (exhibit R1). The second was "section D" of the application for review to the RRT by the applicant, the third "section C" of the application for review to the RRT (exhibit R3). A transcript of the proceedings before the RRT on 28 August 2002 was tendered (exhibit R4) and it is noted that the coversheet of the transcript has printed upon it "proceedings recorded by the Refugee Review Tribunal - poor sound quality". The respondent helpfully provided a further document purporting to be missing transcript from page 23, line 29 of exhibit R4 in a document entitled "The short document prepared from contemporaneous notes taken by me on 26 June 2003 after listening to the hearing tape in this manner on that day". It was signed by counsel for the respondent and dated 26 August 2003 (exhibit R5). The court also received as exhibit R6 the tape-recording of the hearing before the RRT on 28 August 2002.
In the further amended application for an order of review the grounds relied upon are as follows:
“The RRT made jurisdictional errors in that it failed to exercise the jurisdiction conferred upon it by sections 36, 47, 65 and 414 of the Migration Act 1958 (Cth)
PARTICULARS
In reaching its decision the RRT failed to accord natural justice and/or misconceived its duty and/or identified a wrong issue and/or asked itself the wrong question and/or ignored relevant material in a way that affected the exercise of power in that the RRT:
a)failed to consider the First Applicant's case that he feared persecution by the ruling party Shiv Sena as a result of the First Applicant's challenge to and rejection of the demands made upon the First Applicant by Shiv Sena;
b)failed to consider the connection between the ruling political party Shiv Sena and the police and the First Applicant's case that he feared persecution by reason of the police withholding protection to the First Applicant from serious harm occasioned at the instance of Shiv Sena;
c)failed to determine whether by reason of the fears described in (a) and/or (b) the First Applicant had a well-founded fear of persecution by reason of an imputed political opinion and/or particular social group.”

Relevant law – jurisdictional error

In considering the issue of jurisdictional error I adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 255 where the Court states:-
“16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”

The Tribunal's relevant findings and reasons

It is useful to set out the following extract from the Tribunal's discussion and findings:
“The Tribunal found the Applicant's account of events to be credible. He related it spontaneously and fluently and it is corroborated by many court documents, as well as evidence from his spouse and Mr C. It accepts that he was acquainted with both the victim and the perpetrator of a murder in 1993. He was not an eyewitness to the murder, but the Tribunal accepts that he was pressured by police into testifying about the relationship between the victim and the perpetrator. It accepts that the victim was a known bully and that the accused men had some connection with the Shiv Sena party. It accepts that the accused and the police pressured him and his spouse from time to time in the lead-up to the trial. That pressure consisted of unannounced visits and idle threats. In the meantime, the Applicant and his family continued to live at the same address and the Applicant continued to work. The type of harassment they encountered would have been uncomfortable but was not, in the Tribunal's view, so serious as to amount to persecution. Its conclusion to that effect is consistent with the Applicant's willingness to travel to the USA to work and leave his family behind in M… in 2000.
The Tribunal accepts that some threats were made by the convicted me after they were released and that was one of the reasons the applicant returned from the USA. However, he remained in M… for almost two years after the main culprit was released and, according to his own evidence, reported the threats to the police. Again, the threats were idle, notwithstanding the connections of the convicted men with Shiv Sena. In the meantime, the applicant became a partner in his business and travelled to other parts of India, such as B…, and still returned to M… without encountering harm that could, in the Tribunal's view, be properly described as persecution for the purposes of section 91(R) of the Act. The men he fears have had ample opportunity to implement their threats on the applicant and his close relatives, but have not done so. The Tribunal is satisfied that part of the reason for that is that the police have been informed of the threats and, while they cannot provide around‑the-clock protection, their presence and role have played a role in protecting the applicant from encountering any serious harm.
In the context of the Applicant's history and the circumstances surrounding his fears of being persecuted in regard to giving testimony at the murder trial, the Tribunal is not satisfied that there is a real chance that the Applicant, his spouse or child face harm that is sufficiently serious as to amount to persecution.
Not only are the Applicant's fears of persecution not well‑founded, the tribunal also finds that they have no nexus with the Refugee Convention. The Applicant, his spouse and his witness all agreed that the motive of the convicted men was to obtain revenge because the applicant testified against them. The applicant agreed that they did not wish to harm him for any one of the specified Convention reasons. That is also apparent in the evidence of the Applicant, his spouse and Mr C. The Applicant's fears arise from a private issue between him and the men against whom he testified. There is not State involvement in or approval of the activities of the convicts. On the contrary, they have provided advice to the applicant not to associate with the convicts, nor to respond to their threats and demands. They have, in effect, actively provided effective protection. In that regard the role of the State was considered in Chan's case (above) where McHugh J said, 'A threat need not be the product of any policy of the government of the person's country of nationality. It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution.' [at 430]
In a subsequent High Court case Applicant A and Anor v MIEA and Anor (1997) 190 CLR 225 Gummow J held that the phrase 'for reasons of' served to identify the motivation for the infliction of the persecution and the objective sought to be attained by it (at 284). The reason for the persecution must be found in the singling out of one or more of five attributes, namely race, religion, nationality, membership of a particular social group or political opinion. The Tribunal has no doubt in the matter that, that is, the subject of this decision, that the convicted men are not motivated to harm the applicant or his family for any convention reason.
In summary, the Tribunal is not satisfied that the applicant faces a real chance of persecution for the reasons he described, should he return to India. Nor is it satisfied that his fears have a nexus with the convention. It concludes that he does not have a well‑founded fear of persecution for Convention reasons.”

Applicant's submissions

Essentially, the jurisdictional error relied upon arose from circumstances where it was claimed that the RRT failed to consider specific claims by the applicant as follows:
·Physical violence or other serious harm at the instance of the ruling political party Shiv Sena; and
·That the police would withhold protection to the first applicant from serious harm occasioned at the instance of Shiv Sena.
Essentially the applicant’s claim was that he had demonstrated sufficiently before the tribunal a fear of persecution arising from his defiance of the ruling party’s demands and also put before it evidence that he had a well-founded fear that any harm at the instance of Shiv Sena would not receive protection from the police because of the relationship of Shiv Sena and the police.
It was argued that there was written material provided by the applicants referred to earlier in this judgment and evidence before the RRT, together with evidence from a witness who I have referred to as Mr C, concerning the following:-
·Shiv Sena's direct involvement in extorting the first applicant and the first applicant's resistance and opposition to Shiv Sena's demands,
·evidence that the leader of Shiv Sena had demanded the first applicant pay money to each of the convicted men and demanded he hand over his passport, evidence that Shiv Sena people had told the first applicant that if he left India "it would be a big problem for you",
·evidence that the applicants left India directly as a result of being called in by the leader of Shiv Sena,
·evidence that the applicant could not go to the police because of Shiv Sena's influence upon the police
·evidence from Mr C of the capacity of Shiv Sena to neutralise the police
·evidence was provided by the second applicant of Shiv Sena people coming to the first and second applicant's house demanding "ransom".
·evidence of Mr C that Shiv Sena was motivated to harm the first applicant because he put "their men behind bars".
It was noted in the submissions that the RRT had found the applicants' account of their claims to be credible (court book page 137) and did not reject any of the evidence upon which the applicants relied in support of their claims. Hence, it was submitted that the RRT by not referring to or making findings about the evidence adduced by the applicants in support of the claims of physical violence or other serious harm at the instance of Shiv Sena or the withholding of protection from the police meant a failure to consider “that which the statutory makes relevant and renders necessary to be considered” (see Linett v Australian Education Union (2002) FCAFC 157 per Kiefal J at [34]) arising from what Kirby J characterised in Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 as, “a fundamental mistake at the threshold in expressing and thereby considering a legal claim propounded by [the] applicant” at [87]).
A failure by the RRT to properly identify or respond to the case put to it by the Applicants was submitted to be both a failure to accord the Applicants natural justice and reveals a misunderstanding of the RRT's statutory duty.
It was argued that there was evidence before the RRT demonstrating that the First Applicant had a subjective fear of serious harm at the instance of Shiv Sena and the police would not protect him from that harm and that he had not reported demands made by Shiv Sena to the police because of its influence upon the police. It was argued there was an additional motivation of harm of the first applicant and/or his family because he directly challenged and resisted Shiv Sena. He did not pay as agreed and fled in direct rejection of Shiv Sena's demands and requirements. Accordingly, it was reasonable to suppose that as a consequence of the first applicant's actions Shiv Sena perceives the first applicant as an opponent, that is, a person who has challenged its authority and who cannot be trusted and would therefore be dealt with adversely.

It was further argued that on the material before the RRT there was sufficient for it to find that the first applicant's subjective fear of Shiv Sena should he be returned to India was well-founded. In any event, it was submitted the Tribunal had failed to consider whether the first Applicant had such a subjective fear of persecution in relation to the matters raised earlier. The conclusion of the RRT that the first applicant did not have a well-founded fear of serious harm from the convicted men addressed what was described as a different issue being largely based upon events prior to the direct involvement of Shiv Sena and the First Applicant's direct challenge to and rejection of its demands. Having failed to consider the First Applicant's fear of persecution, it was submitted the RRT had therefore failed to consider whether that fear was for a convention reason, including a fear for reason for political opinion either held by the First Applicant or imputed to him and/or whether it was for reasons of the first applicant's membership of a social group, namely persons opposed to Shiv Sena or identified by a person of Shiv Sena as opponents.
It was argued that even if the private persecutory conduct was not of itself directed to the Applicant for a convention reason the RRT did not consider the question of state inaction or inability to offer adequate protection by reason of the intervention of Shiv Sena. On the material before it the RRT could have done so on the basis that Shiv Sena was a state agent and/or because the police:
a)condoned or would condone persecution of the first applicant by Shiv Sena by reason of the first applicant having directly opposed Shiv Sena and thereby being an opponent of Shiv Sena; and/or
b)would fail to provide protection because of perceptions the first applicant was an opponent of or out of favour with the ruling political party.
It was argued that on the evidence before the RRT it was apparent that the first applicant was unable to look to those state agencies from whom he might reasonably expect to receive protection.
It was argued that where persecution consists of two elements, the criminal conduct of private citizens and the toleration or condonation of such conduct by state or agents of the state resulting in the withholding of protection which the victims are entitled to expect, then the requirements that the persecution be by reason of one of the convention grounds may be satisfied by the motivation of either the criminals or the state (see Minister for Immigration and Multicultural and Indigenous Affairs v Khawar (2002) 187 ALR 574 per Gleeson CJ at [31], McHugh and Gummow JJ at [85], Kirby J at [117-118]). Reliance was placed upon the specific following passage from the judgment of Kirby J in Khawar where the court states the following at paragraph [17]:
It is sufficient that there is both the risk of serious harm to the applicant from human sources and a failure on the part of the state to afford protection that is adequate to uphold the basic human rights and dignity of the person concerned.

Respondent's submissions

It was argued on behalf of the respondent that the RRT had expressly recited the applicant's evidence at the hearing that the convicted men were not motivated for any convention reason, and further, the applicants "had no other reason to fear harm should they return to India". It was contended that the RRT dealt with the claim as squarely raised on the material and that accordingly there can be no error. (see VGAO of 2002 v MIMIA (2003) FCAFC 68 per Allsop J at [53] and [55], Wilcox J at [4], Cooper J at [8] and see also Re MIMIA; Ex parte S134 [2003] HCA 1 at [31]-[32] per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ).
It was further argued by the respondent that there was inconsistency in the evidence of the applicants where on the one hand the evidence recited by the RRT that the motivation of the convicted men was not convention-based, and further, that the applicants had no other reason to fear harm should they return to India. That summary of evidence is not claimed to be incorrect and it was submitted is inconsistent with what is now suggested to be the convention-based reasons. Reference was made throughout the course of submissions by both parties and it is useful to refer to those references made by the applicant which were then the subject of reply by the respondent. The applicant's references were to instances where specific reference was made to the political party. It is perhaps useful to set out those references and then deal with the respondent's submissions. In general terms, it is fair to conclude that the references which follow, at least in part, although I highlight the emphasis placed by the first applicant upon the political party. The following references appear:
Applicant: Yes, I've gone to police. Police told that that's their right to come out. Our duty, whatever duty we have to make, we have made it. So I told them, 'I want the police protection'. They were laughing and told me 'Everyone can't get the police protection. If anything happens to you, then we can take some legal step'. (transcript page 14, line 40)
Applicant: Once they did I was manage to escape. I don't want to make much difficult for me, so I couldn't go to police then. (transcript page 15, line 11)
Tribunal: So what is the significance of being a member of Shiv Sena?
Applicant: Because Shiv Sena is a very strong ruling party - like, since so many years.
Tribunal: In M…
Applicant: Yeah, in M… as well as in many parts if India.
Tribunal: So what is the significance of that?
Applicant: So they called me once that – because they are – other accused complained about that. That H… has done this to me – this to me and he’s not paying me, so they called me there as they have joined Shiv Sena and so they called me and told me that, ‘You have to pay this amount, otherwise it’s problem for you.’
Tribunal: Did you go to the police?
Applicant: No, because Shiv Sena is very strong party. I can’t go to police otherwise they will make a big problem to me. (transcript page 18, line 30)
Applicant: Yes, because they are now completed each two nine years in jail. They are having too much criminal-minded person with them and they also knows me. They are also having my photograph also.
Tribunal: Apart from this particular reason, that you are a witness against these men, are there any reasons that you think you might be harmed if you return to India?
Applicant: Yes, they bring the definitely harm to me because the Shiv Sena people told me before also that if you leave India the Shiv Sena party will go. If we will catch you, then it's a problem for you.
Tribunal: So no other reasons that you think you might be harmed?
Applicant: Definitely, I will be harmed because of that accused person as well as Shiv Sena. There is nowhere else in India you can go because they can track you down because of their Shiv Sena contacts.
(transcript page 23, line 26 as amended by exhibit R5)
Tribunal: … Would you like to ask your wife to come in? You can stay here. It's difficult to fit you into the Convention. You have to show people who are your persecutors not motivated by one of the five convention reasons. In your case you haven't really shown that. They are motivated by revenge greed something personal. I think you understand the problem. You understand?
Applicant: "Yes."
(transcript according to exhibit R5)
Tribunal: But apart from that reason related to your husband testifying against the men, are there reasons separate from that testimony
Applicant's wife: No.
(transcript page 26, line 25)
Tribunal: Would you say the only reason the accused man or the persons in Shiv Sena want to harm you or your wife or your child - the only reason is to pay you back for giving testimony? Is there any other reason?
Applicant: That - whereas means if I move to any other parts of India (indistinct), but it's difficult for me to get a job or
Tribunal: I understand that, but is there any other reason? Mr C says the only reason they want to attack you is to get some sort of revenge because you testified against them. Your wife agrees with that too.
Applicant: Yes.
Tribunal: So I haven't really got a problem believing that, but the problem is there's no link with the Refugee Convention. Do you understand the legal - there's a legal problem?
Applicant: But if you can grant me a temporary protection visa even if (indistinct)
(transcript page 30, line 25)
Tribunal: Yes, I understand all those problems. The problem in your case is you haven't really established a link with the Refugee Convention because these men, on all of your evidence, they're not harassing you because of your race. They're not harassing you because of your religion. They're not harassing you because of your nationality or your membership of a particular social group or your political opinion. It's on your own evidence they're not doing that.
Applicant: No, they're only trying to get back as to their men being - punished.
Tribunal: Yes.
Applicant: --- and being in prison for eight or nine years.
Tribunal: Yes.
Mr C: So it's just like, you know, they will try.
Tribunal: Payback.
Mr C: Payback. So now that they have come out of prison they want to try and find out where they are staying or, you know, trying to find out some place as to get him back and maybe they will hurt him or they will hurt his daughter. They will hurt his wife.
Arising out of those extracts from the transcript which on occasions have been supplemented by exhibit R5 the respondent submitted that the evidence confirmed the motivation of the convicted men was personal revenge for having been imprisoned as a result of the involvement of the applicant and because he gave evidence against the convicted men. It was submitted, therefore, there is no obligation of the RRT to ignore that evidence and it cannot be said that the applicant ever "based" his case upon any claimed fear because of his alleged noncompliance with the financial arrangement. In any event, it was submitted that there was some evidence that Shiv Sena was involved in organising the financial arrangement between the applicant and the convicted men and that they had taken the applicant's passport. The material in the court book (at page 128) suggests that the meeting and confiscation occurred after 20 January 2002, whilst it was noted the applicant entered Australia on his own passport issued on 10 May 1999 valid to 27 July 2003 (court book page 3) which means the date of issue predates the claimed confiscation of the passport in India and it was submitted the applicant never claimed that his passport had been returned to him prior to his departure from India.
It was submitted that even if there was material to suggest the applicant had not complied with the financial arrangement, it does not then follow that the claim had been squarely raised that the applicant had a real chance of persecution for a convention reason. It was argued the applicant never claimed that he may be harmed because he had not complied with the financial arrangement. To the contrary, his evidence and that of Mr C was that the applicant and his family only feared harm because of the applicant's involvement in the prosecution and the imprisonment of the convicted men. It was further argued that the applicant did not identify or rely upon any material to suggest he was the subject of any adverse interest of Shiv Sena because he had not complied with the financial arrangement. Further, even if he was the subject of adverse interest from Shiv Sena because he had not complied with the financial arrangement, there is no convention claim squarely raised on the basis of that material. It was submitted that it is not enough to merely point to Shiv Sena as a political party, even a powerful one, as it must be established there was material before the RRT to suggest that any adverse inference in the applicant was motivated for a convention reason.
The respondent relied upon the decision of Wilcox J in Parra v MIMIA (2000) FCA 85 at [13] as follows:
I have also said that it is no part of a tribunal's function to make a good case claimed by an applicant. Still less would it be part of a tribunal's function to make good a case, which the applicant has not articulated, only because there was some evidence of elements of the claim.
In relation to the issue of the police withholding protection because he was opposed to Shiv Sena or had become an opponent of Shiv Sena, it was submitted by the respondent there is no direct evidence that the applicant had opposed Shiv Sena or had become an opponent of it. More significantly, it was submitted that no convention claim was squarely raised by the applicant that he was at risk of persecution from Shiv Sena, as indicated earlier, by failure to comply with the financial agreement.
It was submitted that ultimately it was a question of fact for the RRT as to whether the convicted men's connection to the ruling Shiv Sena party would impact upon the police's willingness to provide effective protection to the applicants. It was argued that the applicant's contention is no more than an attempt to challenge the merits of that finding.

Reasoning

It is clear to me that on a proper reading of the transcript and the amendments provided by way of Exhibit R5 that the issues concerning retribution from the convicted men against whom the applicant gave evidence and their association with Shiv Sena was clearly raised for consideration by the RRT. I am further satisfied that the issue of demands made upon the first applicant had clearly been raised in the application and appear to be referred to in the transcript. In particular I note the extracts set out earlier in this judgment at p.18 where reference was made to the applicant being told “You have to pay this amount, otherwise its problem for you (sic).”
In its findings and reasoning the RRT had no difficulty accepting that the first applicant was the victim of both pressure in the first instance to testify in the trial and then pressure from convicted persons after the trial. Threats were made to the first applicant and it is noteworthy that the RRT clearly addressed its mind to the threats at one stage being what it described as “idle notwithstanding the connections of the convicted men with Shiv Sena”. The suggestion that the threats were idle was made in the context of the applicant remaining in the relevant town for almost two years after the main culprit was released.
It is further noteworthy that the RRT was clearly confronted with evidence from the applicant, his spouse and witnesses who all agreed that the motive of the convicted men was to obtain revenge because the first applicant had testified against them. It was open to the tribunal to find as it did find that the convicted men were not intent on harming the first applicant for any specified convention reason.
In my view it was further open to the RRT to make an assessment of whether or not the police had provided what it describes as “effective protection” for the applicant. It is significant that in considering the fears of the first applicant the RRT makes a finding that those who made the threats had ample opportunity to implement the threats and the RRT then finds as in my view it was open to find that it was “satisfied that part of the reason for that is that the police had been informed of the threats and while they cannot provide around the clock protection their presence had played a role in protecting the applicant from encountering any serious harm”.
One issue of concern was the extent to which the refusal of the applicant to meet the financial demands of the convicted persons associated with Shiv Sena would then place the applicant in a position where he could properly be regarded as a person who then feared persecution by the ruling party as a result of that rejection of the demands as asserted by counsel for the applicants.
Again, however the tribunal refers to there being no state involvement in or approval of the activities of the convicts and notes that on the contrary “they have provided advice to the applicant not to associate with the convicts nor to respond to their threats and demands”.
It is clear to me on a proper reading of the transcript that the connection between the convicts and Shiv Sena have been squarely raised by the applicant. However, it is difficult to see that the RRT whilst perhaps not specifically addressing the political consequences of the applicant being placed in a position of becoming of what might be described as an opponent to Shiv Sena, it did nevertheless consider the political context of the threats. It was able to highlight the lack of harm to the applicant during a period of time when he resided in the relevant town after the release of the main culprit and had also been aware that the applicant had entered Australia on his own passport issued on 10 May 1999 which was valid until 27 July 2003 with the date of issue pre-dating the date claimed by the applicant to be the confiscation of his passport in India.
It is clear as submitted by the respondent that there was no evidence however that the first applicant had become an opponent of Shiv Sena or opposed Shiv Sena but rather had resisted demands made by persons associated with Shiv Sena. I cannot see from the material before me any basis upon which it could then be claimed that the issues agitated by the first applicant were not considered in an appropriate manner by the RRT given that the specific claims now agitated were not particularly well articulated by the first applicant at the hearing. As submitted by the respondent it is not for the RRT to make good a case not articulated by the applicant though in the present case it seems clear to me that the RRT has considered the political context in which the claims were made and the association between the convicts and Shiv Sena. It has further considered the issue of whether or not protection was available from the relevant authorities and whether or not indeed there is any state involvement in supporting the convicts against the first applicant. This is not a case where it could properly be said in my view that there has been a fundamental mistake in considering the legal claim of the applicant of a kind which would attract judicial intervention on the basis that there was jurisdictional error.
I have deliberately set out in some detail extracts from the transcript and the tribunal’s reasons as both reveal an attempt to at least grapple with the fundamental issues of concern to the first applicant. As I have indicated a proper reading of the material leads me to the conclusion that the RRT has endeavoured to deal with the material in a proper manner and has effectively addressed the issues raised by the first applicant both in written material and in evidence before the RRT.
I cannot see any other basis upon which it could be claimed jurisdictional error has occurred. It follows therefore that the application should be dismissed with costs.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 17 December 2004