VWBF v Minister for Immigration - [2005] FMCA 1334

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VWBF v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1334

MIGRATION – Review of decision of Refugee Review Tribunal affirming a decision of a delegate to refuse a protection visa – no jurisdictional error – application dismissed.

Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth)
1951 Refugees Convention
1967 Refugees Protocol

Prathapan v Minister for Immigration & Multicultural Affairs (1998) 47 ALD 41
Gamaethige v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 424, 428 and 444
NAMM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 32 44 to 46
Abebe v The Commonwealth (1999) 197 CLR 510 579
Minister for Immigration & Multicultural & Indigenous Affairs v Rajalingam (1999) 93 FCR 220, 240, 64 to 65
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 (FC, at 287)
Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) HCA 18

Applicant:

APPLICANT VWBF

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 372 of 2004

Judgment of:

Hartnett FM

Hearing date:

7 September 2005

Delivered at:

Melbourne

Delivered on:

7 September 2005

REPRESENTATION

Counsel for the Applicant:

Mr Gibson

Solicitors for the Applicant:

Erskine Rodan and Associates

Counsel for the Respondent:

Dr Donaghue

Solicitors for the Respondent:

Australian Government Solicitor

ORDER

That the Refugee Review Tribunal be joined as a second-named respondent.
That the application is dismissed.
The applicant pay the respondent's costs fixed in the sum of $6000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 372 of 2004

APPLICANT VWBF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of India who arrived in Australia on 5 September 2001. On 25 September 2001 he applied for a protection visa. On 8 April 2002 a delegate of the respondent determined to not grant that visa.
On 1 May 2002 the applicant applied to the Refugee Review Tribunal for review of the delegate's decision. On 24 October 2003 the tribunal affirmed the delegate's decision. The decision was handed down on 14 November 2003. On 16 December 2003 the applicant commenced proceedings in the Federal Court of Australia seeking judicial review of the decision.
That application was made pursuant to section 39B of the Judiciary Act 1903 (Cth) and sections 475A, 477, 478 and 479 of the Migration Act 1958 (Cth) (the Act) for writs of prohibition and certiorari and for a declaration in relation to a decision of the Refugee Review Tribunal to affirm the decision of a delegate of the respondent to refuse the grant to the applicant of a protection (class XA) visa.
Under section 65(1) of the Act a visa may be granted only if the decision-maker is satisfied that the prescribed criteria for the visa have been satisfied. Subsection 36(2) of the Act relevantly provides that a criterion for a protection visa is that the applicant for the visa is a non‑citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
Australia is a party to the 1951 Refugees Convention and the 1967 Refugees Protocol. Article 1A(2) of the Convention relevantly defines a refugee as any person who -
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, member of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
The applicant claimed he feared persecution in India for reason of his Christian faith and membership of an evangelical church. He claimed to have worked as an evangelist from 1998 until he came to Australia in 2001. Prior to leaving India the applicant lived in Chennai in Tamil Nadu with his wife and children.
The application for an order of review alleged various jurisdictional errors, only three being pressed in the proceedings. The applicant alleged the decision involved a jurisdictional error because:
(a) There was no evidence to support a central finding.
(b) The tribunal failed to reasonably speculate that it may have been wrong in its findings.
(c) The tribunal applied the wrong test or standard in assessing the available of effective and adequate state protection.

The Tribunal hearing

The tribunal had before it the department's file which included the protection visa application, a record of interview with the delegate and the delegate's decision record. There was also the application for review, several associated documents and statements and oral evidence provided to the tribunal at a hearing on 18 August 2003. The applicant provided a further submission after the hearing. In addition the tribunal had before it country information.
Prior to the hearing commencing, the tribunal had written to the applicant, forwarding to the applicant an account of relevant independent information about the circumstances of Christians in India. Copies of the most significant items read by the tribunal member were enclosed for the benefit of the applicant. The applicant was invited to provide any comment on the information at the hearing or in writing before the hearing.
In her reasons the tribunal member noted that the account of relevant information provided to the applicant in the correspondence forwarded to the applicant prior to the hearing was substantially the same as that set out later in her decision.
The applicant stated in his protection visa application that he came to Australia because he faced persecution in India because of his religion and his occupation as an evangelist. He stated that members of the extremist Hindu RSS would harm him because he preached and converted Hindus who voluntarily sought to become Christians and that he preached against abortions and the killing of unborn babies. He stated that the authorities were corrupt and would not protect people like him.
He did not claim to have been persecuted by the Indian government or its agents. Instead he claimed that members of the extremist Hindu RSS and high-caste Brahmans would harm him because he preached and converted Hindus to Christianity and he preached against abortions. He did not claim that the Indian authorities were incapable of protecting him from the Hindu extremists.
The applicant claimed that some powerful people in the area where he worked did not like the activities of groups promoting Christianity. He claimed that these people complained to the manager of the company which employed him and he was told by the company members that if he wanted to continue working there, then he would have to give up preaching. After a series of warnings he claimed he was dismissed in 1991 for unsatisfactory work performance and unsatisfactory conduct, bringing bad reputation to the company.
The applicant complained to his union and was told they could not help him because most of his fellow employees were against him and did not want to support any action against his dismissal. The applicant produced a statement from a person with whom he had worked dated 5 June 2001 which stated that the managers were "all Brahmans" who "hate Jesus" and that the applicant was dismissed for "false reasons".
The tribunal member asked the applicant at the hearing what he thought had led to his dismissal in 1991 when he had worked for the company and been involved in the church and talking about Christianity for some 20 years. The applicant said that the company where he worked was owned by Brahmans and 99.9 per cent of Brahmans were linked to the RSS and the VHP.
The tribunal member again asked the applicant what he thought had so ignited the attention of Brahmans in 1991 so that he was dismissed, and the applicant responded that there had been skirmishes previously. The tribunal member said:
I asked him what he meant by skirmishes and he said that he was bullied and gave an example of people trying to push him off his bike on his way to and from work and saying that he was engaged in evangelism, that they felt downgraded by this and that they would act against him if he continued. The applicant said that he told them that there was no distinction between people in Christianity (unlike in Hinduism) and this had made them cross.
The tribunal member then went on to ask the applicant if any other bad things had happened to him between being dismissed in 1991 and being spoken to in relation to his views on birth control around 1999. When the applicant claimed to have been spoken to by officials about his opposition to certain birth control practices, the applicant said that government officials had told him:
more than 10 times both before and after 1999 that if something happened to him they would not take action against the perpetrators.
The applicant claimed further that on 7 June 1999 he organised a big gospel meeting in a Village called Athanoor. He claimed a group of Hindu people, mainly Brahman living in the area attacked the meeting and destroyed everything and injured some people including one of the applicant's children. The applicant provided a doctor's letter to the tribunal in support of this claim together with other statements from people who claimed to have been present.
The applicant said afterwards the RSS would intimidate him and his son by showing themselves to them and observing their house. The applicant then claimed that on 19 December 1999:
He was returning by bicycle from preaching in a distant village when some strangers in a car forced him into their vehicle and he was taken to an old house and kept there all night. They threatened to kill the applicant and his family if he continued what he was doing. He was released the next day, and although afraid, continued his work. The applicant told the delegate that while he was held he was beaten and his penis was pulled and his testicles squeezed, he thought in an attempt to make him sterile.
He went to the doctor after the ordeal (on 18 June 2002, a doctor's letter dated 8 May 2002, apparently obtained by the applicant's wife, was provided to the tribunal reporting, "Injury on his private organ"; the applicant also later provided a statement dated 17 June 2002 from a friend who had been with his family at the time and who had observed the applicant when he returned by bus, injured, after his release).
He said that he reported the abduction to the police but no action was taken because the central government is ruled by the BJP, to which the RSS is linked. He said that the governing party in Tamil Nadu, the DNK, is also linked to the BJP. The applicant said that he did not know if those who abducted him were the same people as those who attacked the meeting in Athanoor, that there was one person he recognised as having been involved in the June attack but that the people who abducted him were with the RSS.
The tribunal member asked the applicant about the reporting of his abduction to the police. He said that his wife and another person had gone to the police when the applicant did not return home but they would not take the report. The applicant went to the police after his release. The applicant told the tribunal member that before he arrived at the police station he saw a local RSS leader talking with the police inspector and that he left a written report of what had occurred but that no action was taken on it.
The applicant also said at the hearing that he was attacked one night and his mouth and teeth were injured. He said he thought this was minor compared to the other things which had happened to him. The tribunal member asked the applicant why he thought this assault was motivated by religious differences and he said that the people had targeted his mouth so as to stop him talking. The tribunal member suggested to the applicant that it might have been a random act of violence and the applicant responded there was no other reason for anyone to attack him and that he believed he was targeted.
The applicant claimed in 2001 to be accused by a group of Hindus of getting money from Christian countries to convert Hindus to Christianity. He claimed the group demanded 10,000 rupees to guarantee protection and that when the applicant said he did not have the money the group left angry, promising to burn his house and destroy his family because he would not give them money.
The applicant then stated that two days later, while he was sleeping at night, he woke to the smell of smoke and found his house on fire. The family was just able to escape before the roof fell in. The applicant told the delegate that the people who came to demand money and who burned his house were RSS people and that people in his area had seen them. The applicant claimed that he told the police and government officials about the burning of his house but that they neither recorded the complaint nor took any action on the matter.
The applicant said that he had gone to the police but did not tell them who burned his home. The tribunal member asked the applicant why he reported the fire at all if he did not want to tell the police who had done it and the applicant said it was a formal requirement and that he did so to protect himself from being blamed and to make it clear that it was not related to suicide.
In the submission provided after the hearing the applicant drew attention to corruption and political interference in police work and in the judicial system which he said was evident in India and stated that this was the main reason for the failure of governments to provide protection for religious workers. He stated that he had no confidence that the Tamil Nadu authorities would protect him in future given that they had failed to do so in the past. The tribunal member said to the applicant that it appeared to her that there was little support for extreme Hindu groups in Tamil Nadu.
The tribunal perused relevant independent information about India. It noted that the State of Tamil Nadu had a population of some 62 million, of which 5.7 per cent are Christian, 5.5 per cent Muslim and 87 per cent Hindu. Tamil Nadu is regarded by the World Evangelical Alliance as having a -
large and strong Christian community that has a history dating back 2000 years. The capital city of Tamil Nadu, Chennai, is 12 per cent Christian with some 2000 congregations and hundreds of bible schools...
Contained in the country information was a United States Department of State annual assessment of religious freedom in India. In its report, International Religious Freedom Report 2000: India, Washington DC, October 2002, it said:
Animosities within and between the country's religious communities have roots that are centuries old, and these tensions, at times exacerbated by poverty, class and ethnic differences, have erupted into political violence throughout the country's 55‑year history.
The government makes some effort, not always successfully, to prevent these incidents and to restore communal harmony when they do occur, however tensions between Muslims and Hindus, and between Hindus and Christians, continue to pose a challenge to the concepts of secularism, tolerance and diversity on which the State was founded.
Other matters of particular relevance to Christians as covered in the report were referred to in the tribunal's reasons, including the detailing of a number of attacks on Christians in a number of States, some of which had involved killings or beatings. None of those reported in the 2002 International Religious Freedom Report appear to have occurred in Tamil Nadu but the tribunal member noted that she did not consider that that meant there were none.
The tribunal considered the United Kingdom's Immigration and Nationality Directorate assessment on country conditions entitled India Assessment, issued in April 2003, containing information about the circumstances of India's Christians including the following:
Prime Minister Vajpayee, who visited the Dang area, stated that the government would not tolerate any further attacks on the Christian minority. The Union Home Ministry sent a team of officials to investigate the attacks. Security forces were deployed in the affected areas to guard missionaries and churches. Further violence took place on the day the Gujarat Chief Minister rejected an interim report by the National Commission for Minorities on the situation in the State as "biased and one-sided."
The report found that attacks on Christians and their property had been carried out with the connivance of Hindu groups and was critical of the Gujurat government's role in failing to protect minorities.
Also referred to was the Human Rights Watch World Report 2002 report that:
The government took some positive steps to prosecute perpetrators of violence against members of minority religious communities -
and that perpetrators had been convicted and imprisoned.

The Tribunal's findings

The tribunal member said at the commencement:
At the outset, I record that the applicant's submission drew attention to reports of increasing harassment of members of religious minorities over recent years and to particular actions taken against a number of Christians and that I have read a considerable amount of material about the nature and extent of what has occurred in this regard.
That some people in a country have suffered or suffer persecution and that an applicant claims to have suffered as these people have, or to be in similar circumstances as those who have suffered and so be at risk of similar treatment, does not, of itself, establish the credibility of a claim or that an applicant's claim to fear is well-founded.
The Tribunal is obliged to consider the totality of the evidence about the particular circumstances of the applicant and to make findings of fact about what has happened to the applicant in the past. It is also required to consider information about conditions in an applicant's country as they relate to the person's particular circumstances and to determine whether there is a real chance that an applicant would face persecution if they were to return to their country.
The Tribunal's task can involve an assessment of the credibility of what an applicant claims occurred and what is feared if they were to return. In considering the applicant's claims I have been mindful of the difficulties asylum seekers can face in providing evidence to support their case and in the difficulties which can follow from having information they provide translated into English.
The tribunal noted that at the heart of the applicant's claim was that he had worked as an evangelist. The tribunal concluded that the applicant sincerely believed in Christianity and that he had talked about his religion to a lot of people over an extended period and that he had assisted a pastor Mark in the Church of God, an Evangelical Pentecostal Church. The tribunal also accepted that the applicant was a Mormon and that the applicant regarded Mormon as Christians. The tribunal member however said:
I consider that the evidence indicates that the applicant has exaggerated the profile of his evangelical involvement.
Although the tribunal found it possible that the applicant was bullied and intimidated from time to time in the course of communicating to people about Christianity, the tribunal did not consider that such treatment was of a seriousness so as to constitute persecution as envisaged by section 91R of the Act. With respect to the applicant's claim that he was dismissed by his employer in 1991, the tribunal found that the applicant's involvement in spreading Christianity was not the essential and significant reason for his dismissal in 1991.

With respect to the applicant's claim in regard to the meeting in June 1999 in Athanoor and the applicant's evidence about reporting incidents to the police thereafter, together with the applicant's claim that he was forced into a vehicle, detained overnight and physically abused, the tribunal concluded that aspects of his account had led the tribunal to doubt that the applicant had provided accurate accounts of what occurred. The tribunal said:
I am unable to accept that on each occasion the police response to the applicant's complaints was determined by the RSS on account of the applicant's involvement in Christianity and the concern that some Hindus have with such activity.
Independent information indicates that those Hindus who have attacked Christians are extremists and that most Hindus are not affiliated with the RSS or other extremist groups; it also indicates that the police across India have taken action to respond to attacks against members of religious minorities, that there is a large number of Christians in Tamil Nadu and that the government of Tamil Nadu has a history of support for religious minorities.
Other matters which have led me to doubt what he has claimed actually occurred include his evidence about the gathering in June 1999 being the first he had been involved with in an evangelical capacity, a matter which I have already stated was difficult to reconcile with his evidence about the length and nature of his involvement over at least two decades.
As well, his claim that his penis and testicles were a focus of mistreatment when he was abducted in order to make him sterile suggests that the applicant sees linkages and motivations which seem to me to be improbable and which do not assist the credibility of his evidence.
I am unable to accept that the accounts the applicant has provided of what occurred in June and December 1999 are accurate; I consider that the evidence supporting his claims about the two episodes in 1999, including the statements he has provided, is outweighed by that which indicates that what he has claimed did not occur as he has described.
and later:-
There are a number of aspects of the applicant's evidence about his house being burned which have led me to doubt that what he described actually occurred as he has claimed. I accept that it is possible that the applicant's house was burned, but I have been unable to conclude that the essential and significant reason for what occurred was the matter of the applicant's religious practice.
The tribunal found that the applicant's evidence about the report he made to the police in the fear that he would be blamed and his concern that it not be regarded as related to suicide contributed to the tribunal's concerns that the applicant had not provided an accurate account of all that had occurred. The tribunal did not accept that the applicant had been sought by Hindu activists since his departure for Australia, nor that his family were living in fear of coming to harm in India because of the applicant's involvement in religious activity.
The tribunal then went on to say:
Notwithstanding my rejection of most of the applicant's evidence about the adverse consequences of his involvement in Christianity in the past, the focus of the tribunal's deliberations must be on what would follow his return to India in the reasonably foreseeable future. As I have stated, the applicant is a Christian and a member of an evangelical church, he has talked with people, including groups of people, about Christianity for a long time and has on occasion been bullied and intimidated for this reason.
I accept that he may continue to try to spread information about the value and benefits of Christianity if he were to return to India. My consideration of the evidence before me has, however, led me to conclude that the chance that the applicant would face serious harm because of his religious practice is remote -
and further:
It is possible that the applicant may experience some harassment because of his religious activities as I consider he probably has in the past and as independent information indicates can occur but I consider that there is not more than a remote chance of such harassment being of a kind which could amount to persecution, that is serious harm as envisaged by section 91R of the Act.
In reaching the conclusion that the chance that the applicant would face persecution is remote, I have had in mind his evidence about Pastor Mark who it appears has faced nothing like the trouble the applicant claims to have faced (most of which I have found to be not credible).
The applicant's explanation for Pastor Mark's apparent absence of trouble was that Pastor Mark just administers while the applicant went deep into villages. As noted above, I found this difficult to reconcile with other aspects of the applicant's evidence about what he did and in the end concluded that the applicant had exaggerated the nature and extent of his evangelical role.
I consider that Pastor Mark would have a far greater role than the applicant had and that he appears to have come to no serious harm, while working in the same area as the applicant and in the same church, weighs against the applicant's claim to face a real chance of persecution.
Finally the tribunal went on to consider the attitude of the authorities to attacks against Christians, noting that factors relevant in this case are whether there is -
A reasonable level of efficiency of police, judicial and allied services and functions, together with an appropriate respect on the part of those administering the relative State organs for civil law and order, and human rights (Prathapan v Minister for Immigration & Multicultural Affairs (1998) 47 ALD 41 Madgwick J at 48) -
and said:
I consider that the independent evidence which I have read strongly indicates that the Indian authorities do respond to violent episodes perpetrated against members of religious minorities and I am satisfied that an adequate level of State protection exists to protect people who practice Christianity in Chennai, including those who are evangelical, from coming to serious harm.
As well, the serious harm which the applicant claims would befall him upon return (which I do not consider will) lacks an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the Indian authorities, an element which must be evident before conduct can be regarded as persecutory.

Consideration

It is not possible to contend, as the applicant seeks to do, that there was no evidence to support the tribunal's findings that authorities in India had taken action to respond to attacks against Christians. Whilst some of the country information pointed towards difficulties experienced by religious evangelists, it was a matter for the tribunal to weigh up the factual information that was before it. The tribunal did so, concluding that the evidence before it supported a finding of fact that:
Indian authorities do respond to violent episodes perpetrated against religious minorities.
The applicant complains that some of the tribunal's findings have no logically probative connection to the issue.
This complaint appears to relate to the tribunal's reason for finding that the police response to his complaints was not determined by the RSS. The tribunal found the RSS was an extremist group and that most Hindus did not support it. In light of that finding it was perfectly logical for the tribunal to doubt whether the police would act at the behest of an extremist group.
In any event, as put before the court by the respondent, there is a long line of Federal Court authorities that have held that illogicality or failure rationally to consider probative evidence does not constitute an error of law (Gamaethige v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 424, 428 and 444 which was applied by the Full Court in NAMM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 32 44 to 46).
I find that the tribunal's reasons were lengthy, considered and thorough. The tribunal did not overlook any matters that were put to it. It carefully considered the matters it was required to consider and its reasons are explained in detail. I agree with the submission of the respondent that the applicant's criticism of the decision relates to the factual findings the tribunal made and to the weight it accorded to parts of the evidence and conclude that those matters were exclusively for the tribunal to determine (Abebe v The Commonwealth (1999) 197 CLR 510 579).
The applicant asserts further that the tribunal made jurisdictional error because it failed to consider whether the applicant had a well-founded fear of persecution by having regard to the possibility that the events he claimed had occurred did occur even though it had found that they had not occurred. The requirement to ask, "What if I am wrong?" arises only where on a fair reading of the reasons for decision, the tribunal expresses uncertainty in relation to its findings.
Whilst the tribunal referred several times to "doubt" as to the applicant's claims, those references were to doubt about the applicant's evidence that was placed before it and not doubt about the findings that the tribunal ultimately made in relation to the evidence. Looking to the tribunal's reasons and reading them as a whole, such reasons do not disclose that the tribunal had any doubt about its rejection of the applicant's claims.
The tribunal rejected most of the applicant's evidence about the adverse consequences of his involvement in Christianity in the past. It is not possible for this court to impute its doubts, if the court had any, to the tribunal (Minister for Immigration & Multicultural & Indigenous Affairs v Rajalingam (1999) 93 FCR 220, 240, 64 to 65). As Sackville J said in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220, 241 at 67:
In general ... the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT's own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had "no real doubt" (to use the language in Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong.
Reasonable speculation as to whether the applicant had a well‑founded fear of persecution does not require a possibility inconsistent with the RRT's own findings to be pursued. A "fair reading" of the reasons incorporates the principle that the RRT's reasons should receive a "beneficial construction" and should not be "construed minutely and finely with an eye keenly attuned to the perception of error"; Wu Shan Liang at 271-272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 (FC, at 287).
On 21 April 2004 the High Court handed down its decision in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) HCA 18. That decision creates an insuperable obstacle as said by the respondent to the submissions that the applicant has sought to advance in relation to effective protection. The applicant's case in this proceeding was not that the government was unable to protect him. As Gleeson CJ, Hayne and Heydon JJ said:
It was not asserted that the judicial system, or the police force, of the country lacked the power to deal effectively with unlawful violence, if they wanted to do so. The allegation is not one of absence of power, or even one of mere absence of will. It was one of positive encouragement of certain forms of unlawful violence (page 14).
The applicant did not set out to prove that the country was out of control. Instead it was suggested that the government was complicit in the violence that was perpetrated by non-State actors. That assertion was rejected by the tribunal on the evidence. Upon judicial review the applicant sought to argue that the State was incapable of protecting the applicant.
Toward the end of its reasons the tribunal said:
I am satisfied that an adequate level of State protection exists to protect people who practice Christianity in Chennai, including those who are evangelical, from coming to serious harm.
The applicant had never contended that Indian authorities were unable to protect him. For that reason the tribunal did not give detailed consideration to that suggestion. To the extent that relevant evidence was before the tribunal, it did not support the claim that Indian authorities did not have a reasonably effective police force and a reasonably impartial system of justice. Certainly, as submitted by the respondent, the absence of such a system was far from being the only conclusion that was open from the evidence.
The tribunal rejected the suggestion by the applicant that police protection was unavailable because the police acted at the behest of the RSS. Once that finding was made, the applicant was required to show not just that he feared harm from other citizens in India but that he could justify his unwillingness to seek protection from India.
I am satisfied that the tribunal made findings of fact upon the evidence before it and provided detailed and comprehensive reasons. There is no jurisdiction error and the application must be dismissed.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate: Tracey Jones

Date: 7 September 2005