FEDERAL COURT OF AUSTRALIA

SZJEZ v Minister for Immigration and Citizenship [2008] FCA 1741

MIGRATION – consideration of an appeal from the Federal Magistrates Court of Australia on the ground that there was no evidence before the Refugee Review Tribunal which entitled the Tribunal to reach the findings of fact it reached – consideration of whether inferences might properly be drawn from facts found – consideration of the appellant’s contention that the decision of the Tribunal was irrational, unsound, unreasonable and not supported by any evidence probative of findings rejecting the credit‑worthiness of the appellant

Migration Act 1958 (Cth), ss 65, 420, 424(1)

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 – cited

Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 – cited

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 – cited and quoted

Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 – cited and quoted

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 – cited

Avon Downs Pty Ltd v FCT (1949) 78 CLR 353 – cited

R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty Ltd (1953) 88 CLR 100 – cited

Attorney‑General (NSW) v Quin (1990) 170 CLR 1 – cited

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 – cited and quoted

Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 – cited and quoted

Minister for Immigration and Multicultural Affairs v Al‑Miahi (2001) 65 ALD 141 – cited and quoted

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10  – cited and quoted

Other Material

Rationality and Judicial Review of Administrative Action:  Dr. G. Airo‑Farulla, Vol. 24, Melbourne University Law Review, p 453

Reasonableness, Rationality and Proportionality:  Dr. G. Airo‑Farulla, Australian Administrative Law, edited by Groves and Lee, Cambridge University Press, 2007, Ch. 14

Administrative law in Australia:  Themes and values, Australian Administrative Law, Ch. 2, French J

SZJEZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD1065 of 2008

GREENWOOD J

20 NOVEMBER 2008

BRISBANE (VIA VIDEO-LINK TO SYDNEY)

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The appellant pay the first respondent’s costs of and incidental to the appeal

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

The appeal

1                     This is an appeal from orders of the Federal Magistrates Court of Australia (SZJEZ v Minister for Immigration and Anor [2008] FMCA 914) dismissing the appellant’s application for an order that the respondents show cause why a remedy ought not to lie under s 476 of the Migration Act 1958 (Cth) (“the Act”) arising out of a decision of the Refugee Review Tribunal (“the Tribunal”) to refuse the appellant the grant of a Protection (Class XA) visa under the Act. 

2                     The appellant is self represented before this Court as he was before the Tribunal and the Federal Magistrates Court of Australia. 

3                     The ground of appeal is put in these terms:

The learned trial judge erred in law by not finding that the Refugee Review Tribunal had made a jurisdictional and factual error in reaching the conclusion that the Appellant is not entitled to [a] Protection Visa.

4                     The appellant recited in his notice of appeal that he believed he had reasonable grounds to challenge the dismissal of his application; that he had only recently received a copy of the ex tempore reasons of Federal Magistrate Barnes; and leave would be sought to file additional grounds of appeal at a later stage.  No such leave was sought.  However, the applicant filed written submissions (a one page document) that should be taken as an amplification of the appellant’s grounds of appeal.  The additional contentions are these.  First, the Tribunal misconceived its function by rejecting the appellant’s contended well‑founded fear of persecution based in part upon his membership of a political party, the Sri Narayana Dharma Paripalama (“SNDP”) in Kerala, India.  The error is said to be that the Tribunal rejected the plausibility of the appellant’s fear of attacks upon him by members of a rival party, the People’s Democratic Party (“PDP”), consistent with contended previous attacks by PDP members upon him, on the footing that the Tribunal “could find no independent country information to support attacks by the PDP on members of the SNDP”.  The decision of the Tribunal is said to be irrational, unsound, unreasonable and not supported by any evidence probative of findings rejecting the credit‑worthiness of the appellant. 

5                     Secondly, the appellant says the Tribunal should have undertaken its own research “to find such information” or, alternatively, the Tribunal ought to have accepted the appellant’s version of events (i.e., ought to have “given me the benefit of the doubt”) as there was no evidence before the Tribunal upon which the appellant’s claims ought properly to have been rejected.  In the absence of any other evidence, reliance by the Tribunal solely upon no independent country information corroborating previous PDP attacks on SNDP members, as a basis for rejecting the appellant’s evidence, was not open to the Tribunal as part of its fact‑finding role.

6                     Thirdly, the Tribunal reached its decision on “mere speculation and suspicion” when concluding that the appellant “was not targeted by the PDP”.  Fourthly, the appellant says that he also relies upon as part of the grounds of appeal before this Court, the grounds contained in his application and amended application before the Federal Magistrates Court of Australia.  As to the application, the appellant contended that the Tribunal wrongly relied upon third party sources; disregarded evidence; the Tribunal member failed to apply his mind to the review task; the Tribunal reached wrong conclusions of fact; and wrongly contended that the appellant could relocate within India. 

7                     By the amended application, the appellant contended that the Tribunal failed to address the “real facts”; asserted before the Federal Magistrates Court the point concerning reliance by the Tribunal upon “no country information” as to PDP attacks upon SNDP members; contended that the Tribunal made factual errors; and contended that the Tribunal reached its decision “in haste”. 

8                     The central matter relied upon by the appellant is that there was no evidence before the Tribunal upon which it could properly have reached the findings it made and that reliance upon the independent country information as a foundation for the Tribunal’s finding was not open to it. 

General principles

9                     Section 65 of the Act imposes an obligation on the Minister to grant a protection visa to an applicant if satisfied of particular matters.  The satisfaction of the Minister is a condition precedent to that obligation.  The delegate of the Minister is in the same position as the Minister.  The Tribunal exercises all of the powers and discretions conferred on the decision‑maker under the Act.  By s 420 of the Act, the Tribunal in reviewing a decision, is not bound by technicalities, legal forms or rules of evidence and must act according to substantial justice and the merits of the case.  In undertaking the review function, the Tribunal is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.  By s 424(1), the Tribunal in conducting a review may obtain information that it considers relevant and must have regard to that information in making the decision on the review.  Provisions which confer upon the Tribunal a capacity to inform itself by information it considers relevant and provisions which free the Tribunal from technicalities and the formal rules of evidence are, like s 33 of the Administrative Appeals Tribunal Act 1975 (Cth), facultative provisions (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 628 [49] per Gleeson CJ and McHugh J) although the extent of that freedom in any given case might be “another question” (Eshetu at [49]).  Nevertheless, the Tribunal must reach conclusions which have a basis in evidence having rational probative force (Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 at 685 per Deane J; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 per Deane J). 

10                  Although the Tribunal is not bound by rules of evidence, the underlying rules of rationality that guide notions of relevance and deductive and inductive reasoning inform the process of reaching a decision that is supported by evidence (Rationality and Judicial Review of Administrative Action:  Dr. G. Airo‑Farulla, Vol. 24, Melbourne University Law Review, p 453:  see also Reasonableness, Rationality and Proportionality:  Dr. G. Airo‑Farulla, Australian Administrative Law, edited by Groves and Lee, Cambridge University Press, 2007, Ch. 14; French J, Administrative law in Australia:  Themes and values, Australian Administrative Law, Ch. 2).  Describing the process of reasoning as irrational, illogical or based upon an unsound approach to the assessment of documents or that findings are not based on inferences of fact supported on logical grounds, may merely be an emphatic way of the appellant disagreeing with a finding of fact (Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 per Gleeson CJ at [5].  Thus, it is necessary to identify the nature and quality of the contended error and the precise legal principle that attracts a particular legal consequence, such as error of law.  The scope of the legal rubric is conventionally understood in terms of the well known passage from Craig v South Australia (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82] per McHugh, Gummow and Hayne JJ.  As to misconceptions which might suggest an unsupportable supposition on the part of the decision‑maker, see Avon Downs Pty Ltd v FCT (1949) 78 CLR 353 at 360 per Dixon J; R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty Ltd (1953) 88 CLR 100 at 120 per Dixon CJ, Williams, Webb and Fullagar JJ.  As to constraints upon a court interfering with a decision‑maker’s assessment of evidence, in exercising supervisory review of administrative decision‑making, see Attorney‑General (NSW) v Quin (1990) 170 CLR 1 at pp 35‑36 per Brennan J. 

11                  At common law, want of logic is not synonymous with error of law (Bond, per Mason CJ at 356 with whom Brennan, Toohey and Gaudron JJ agreed) and, as to inferences:

… so long as there is some basis for an inference – in other words, the particular inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.  [emphasis Mason CJ at p 356] 

12                  Where a statute requires the decision‑maker to discharge particular duties, “irrationality of the kind described by Deane J in (Bond) may involve non‑compliance with the duty” (S20/2002 per Gleeson CJ at [9]).  In the context of the particular statutory framework relating to protection visas under the Act and the role and duty of the Tribunal, Gummow and Hayne JJ with whom Gleeson CJ agreed, in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 observed at [38] that although the question of whether protection obligations relevantly arose included a consideration of factual matters,

the critical question is whether the determination [by the Tribunal] was irrational, illogical and not based on findings or inferences of fact supported by logical grounds … inadequacy of the material before the decision‑maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdiction error.  [my emphasis]

13                  In Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411, Black CJ, von Doussa and Carr JJ at [25] also observed that want of logic in drawing an inference will not of itself constitute an error of law although want of logic “may sound a warning note to put one on inquiry whether there was indeed any basis for the inference drawn”.  See also NAMM of 2002 v MIMIA [2003] FCAFC 32 per French, Lindgren and Finkelstein JJ; MIMIA v W306/01A [2003] FCAFC 208 per French, Hill and Marshall JJ; NACB v MIMIA [2003] FCAFC 235 per Tamberlin, Emmett and Weinberg JJ; W404/01A of 2002 v MIMIA [2003] FCAFC 255 per French, Lee and Carr JJ; NATC v MIMIA [2004] FCAFC 52 per Heerey, Sundberg and Crennan JJ; VWST v MIMIA [2004] FCAFC 286 per Kiefel, Marshall and Downes JJ, applying these principles. 

14                  As to inferences, Sundberg, Emmett and Finkelstein JJ in Minister for Immigration and Multicultural Affairs v Al‑Miahi 65 ALD 141 said this:

[34]      The question whether there is any evidence of a particular fact is a question of law.  Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law.  That is because, before the inference is drawn, there is a preliminary question as to whether the evidence reasonably admits a difference conclusion.  Accordingly, in the context of judicial review, the making of findings and the drawing of inferences in the absence of evidence is an error of law.  On the other hand, there is no error of law simply in making a wrong finding of fact.  Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, that would not amount to an error of law.  A party does not establish an error of law by showing that the decision‑maker inferred the existence of a particular fact by a faulty process, for example, by engaging in an illogical course of reasoning.  Thus, at common law, want of logic is not synonymous with error of law.  So long as the particular inference is reasonably open, even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place. 

15                  The satisfaction or otherwise of whether the appellant is a person to whom Australia owes protection obligations on the ground of a contended well‑founded fear of persecution for a Convention reason might be determined by the Tribunal in the purported exercise of the statutory review function in a way that reveals a failure to reach findings supported by any evidence or reveals findings based on inferences drawn by the Tribunal from facts that do not support those findings, as a matter of law.  Such a determination might be characterised as irrational, illogical, arbitrary, capricious or made according to humour or private opinion rather than by reference to a reason or justice.  Such a decision is unreasonable.  However, for present purposes, I use each of these terms to describe a decision of the Tribunal based on findings unsupported by any evidence or based upon findings thought to be supported by inferences drawn from primary facts where those inferences are not open as a matter of law.  Decisions made by the Tribunal in such circumstances are not made in the performance of the duty imposed on the Tribunal by the Act and thus involve jurisdictional error.  Such decisions do not simply reflect insufficiency or inadequacy of evidence but rather an absence of any foundation in fact for the state of satisfaction or otherwise of the Minister or decision‑maker.  As to the role of independent country information, the Full Court of this Court per Gray, Tamberlin and Lander JJ in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, said this at [11]:

[11]      … There can be no objection in principle to the Tribunal relying on “country information”.  The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact‑finding function.  Such information as the Tribunal obtains for itself is not restricted to “guidance”, as the appellants submitted.  It may be used to assess the credibility of a claim of a well‑founded fear of persecution.  It is not, as the first appellant submitted, an error of law or a jurisdictional error for the Tribunal to base a decision on “country information” that is not true.  The question of the accuracy of the “country information” is one for the Tribunal not for the Court.  If the Court were to make its own assessment of the truth of “country information” it would be engaging in merits review.  The Court does not have power to do that. 

16                  In analysing in NAHI the extent to which the Tribunal relied upon country information in reaching its decision and the relationship between findings on credit and the use of country information, the Tribunal said this at [12]:

[12]      The appellants’ submissions asserted that the Tribunal rejected all of the appellant’s claims on the basis of “country information”.  The Tribunal’s reasons for decision do not substantiate this assertion.  It is plain that the Tribunal relied to a substantial extent on the inherent probability of some aspects of the first appellant’s story, inconsistencies between different parts of his story and the fact of his frequent returns to Sri Lanka and the length of his sojourns there, to form its views about his credibility.  In turn, it relied on its assessment of the first appellant’s credibility in determining whether it accepted some of the “country information”. … The very function of the Tribunal was to assess the appellants’ claims, both as to their inherent credibility and as to their consistency with other information known to the Tribunal about circumstances in the appellants’ country of origin.  [emphasis added]

17                  The central matter therefore is to assess whether there was material before the Tribunal upon which it was entitled to rely as a result of the process it undertook in weighing the merits of the appellant’s claims. 

The claims of the appellant

18                  The appellant arrived in Australia in August 2004 and lodged an application for a protection visa on 16 August 2004 supported by a six page handwritten statement of those matters said to demonstrate a well‑founded fear of persecution for a Convention reason.  The application document contains a short answer to question 40, “Why did you leave [India]?” to which the appellant said:

I had political and commercial problems in India.  If I go back to India the police and local political people try to kill me.

19                  The statement in support of the protection visa application recites that the applicant was born in Nedumungad Kerala in India.  He is a Hindu by belief.  After the death of his father, the appellant began working to support his mother.  He adopted the Hindu faith and later became an executive member of the SNDP.  In March 1989, he married.  He has four children.  He claimed that in June 2003 he opened a shop selling umbrellas with financial help from his wife’s family.  He asserted that in Kerala the “umbrella business” is controlled by members of the Muslim faith.  It was the appellant’s policy to sell his umbrellas at discounted prices.  This was said to upset Muslim businessmen who sold umbrellas at higher prices.  The appellant claimed that on 14 November 2003, two men, Mohamid Buzig and Mohamed Sulaiman came to his shop at about 8.00pm to pressure the appellant to increase the price of his umbrellas or give up the business entirely.  The appellant claimed that these men beat him and cut his head with a knife.  The appellant claimed that the police to whom he complained refused to help him.  He claimed the hospital would not admit him.  He was treated by private doctors although they refused to provide him with necessary medical certificates as the attack was by two Muslim men.  He claimed he was taken to a friend’s place for safety.  He claimed friends and family advised him to leave India.  He claimed that the PDP had a powerful network throughout India.  He also claimed that he had antagonised a Hindu extremist movement described as the RSS and the VHP by asserting a divine connection for the SNDP.  On 4 January 2004, the appellant left India for Singapore.  He was refused protection there and returned to India on 14 January 2004 where he began living in Chennai at a relative’s house.  From there he made arrangements to obtain a visa to travel to Australia.  He departed India on 8 August 2004. 

20                  The Minister’s delegate refused the appellant’s application for a visa.  The appellant applied to the Tribunal for review of that decision on 11 October 2004.  The appellant gave oral evidence before the Tribunal on 25 November 2004.  The Tribunal affirmed the delegate’s decision on 17 December 2004.  The Federal Magistrates Court ordered on 18 April 2006 that a writ of certiorari issue to quash the Tribunal’s decision and a writ of mandamus issue directing the Tribunal to consider the appellant’s application according to law. 

21                  On 3 July 2006, the appellant gave oral evidence before the Tribunal.  On 25 July 2006, the Tribunal published a decision affirming the delegate’s decision.  On 7 May 2007, the Federal Magistrates Court ordered by consent that the Tribunal’s decision be quashed and the application be reconsidered by the Tribunal to be determined according to law.  On 19 July 2007, the appellant gave oral evidence to a third newly constituted Tribunal.  On 20 September 2007, the Tribunal published its decision. 

22                  In his evidence given to the first Tribunal on 25 November 2004, the appellant amplified aspects of his claim to a well‑founded fear of persecution.  The tape recording of evidence was available to the third Tribunal.  The appellant told the Tribunal that the main reason for his well‑founded fear was that Muslims wished to kill him because he was of the Hindu faith.  The Tribunal member drew the appellant’s attention to the fact that the appellant had not made that claim in his application for a protection visa or in the handwritten statement in support of the application.  The appellant told the Tribunal that the person who wrote the application did not speak his language and possibly did not understand everything.  The Tribunal member put to the appellant that the omission of any reference to this concern that Muslims wished to kill him by reason of his Hindu faith, as the main source of his “problems” was not simply a matter of “understanding”.  Plainly, the Tribunal member on 25 November 2004 thought it odd that such an important matter described by the appellant as the main reason for his difficulties and problems in India, was not recited plainly and clearly in the visa application and supporting statement. 

23                  Secondly, the Tribunal member on that date put to the appellant that he had failed to record in his visa application and supporting statement a claim that a bomb had been thrown at his house (intended for the appellant) that had detonated and, in the result, killed his dog.  The Tribunal member put to the appellant that a language difficulty was difficult to accept as an explanation for the omission of this event in the primary application documentation. 

24                  Thirdly, the appellant showed the Tribunal member on that day a card describing the appellant as a committee member of the district committee of the SNDP.  The SNDP was then a party in coalition government in Kerala State.  The coalition was led by the Congress Party of India and included at least one Muslim party.  The appellant told the Tribunal member that he attributed his “troubles” in India partly to political factors.  The contention was that Muslim members of the PDP would seek to harm him because he was a committee member of the district committee of the SNDP, aligned with the party in power.  The Tribunal member asked the appellant whether other committee members of the SNDP were threatened by Muslim men.  The appellant told the Tribunal member that they were not so threatened as far as he knew.

25                  The appellant also told the Tribunal that day that when living in Chennai in hiding he was not subject to any attacks.  The appellant claimed that if Muslim members knew his place of hiding he would have been attacked.  The appellant told the Tribunal that day that the prime motivation for the attack against him was one of religion by reason of his Hindu faith and that a major factor in his fear of attack by Muslim men was that he was a member of the SNDP, a Hindu party.  He claimed that it was unlikely that he would be replaced as a district committee member for Kerala as no Hindu would want the job.  The appellant claimed that there were about 200,000 people in his home town of which 40% were Hindu.  The appellant gave evidence that he was in hiding from November 2003 until his departure for Singapore in January 2004.  The appellant bore a scar on his head from the November 2003 attack.

26                  The appellant gave evidence before a new Tribunal on 3 July 2006. 

27                  Before the new Tribunal, the appellant said that members of the PDP would kill him should he return to India.  He said that his party was the SNDP.  In response to a question as to why members of the PDP would wish to kill him, the appellant told the Tribunal that it was because of his Hindu religion.  The Tribunal asked why the appellant was treated as prominent and a reason for specific targeting and the appellant responded that he was a “leader”.  The appellant explained that his executive membership of the SNDP meant that he was the head of the SNDP Branch in his city.  The Tribunal asked the appellant about the assault in November 2003 and asked the appellant if he had suffered other harm.  The appellant told the Tribunal that he had gone to Singapore from January 2004 to August 2004 and had then returned to India and stayed in Bombay.  The Tribunal pressed the appellant about the possibility of relocating to other cities if he was fearful for his life in his home town.  The appellant told the Tribunal that he had relocated to Madras to work in a hotel.  He had been told that Muslim men were looking for him and so he left Madras.  The appellant said that those who wished to harm him in Kerala had connections in Madras.  The Tribunal asked the appellant why those who wished to harm him would pursue him to another State and he replied that those he feared had said that they would find and kill him wherever he may go.  The appellant told the Tribunal on that day that although the State of Kerala is majority Hindu there are many Muslims where he lives and his wife was “even now having problems”. 

28                  The Tribunal asked the appellant whether he had ever experienced any difficulties in dealing or interacting with Hindus.  He replied that he had no problems with Hindus.  The Tribunal put to the appellant that in his primary application he had said that he had experienced problems with Hindu extremists.  The appellant said that the application was incorrect and that it was Muslim men with whom he had problems.  The Tribunal put to the appellant that Kerala was in fact ruled by a coalition party made up of both Muslims and Hindus.  The appellant agreed that in coalition Muslims and Hindus engaged with each other but nevertheless there were always problems between Muslims and Hindus. 

29                  The Tribunal on this day also raised the question of whether the appellant had suffered harm apart from the incident in November 2003.  The appellant said that he had also been hit on the arm and in the leg.  In response to further questioning, the appellant told the Tribunal that he had not suffered any other form of harm.  The Tribunal put to the appellant that in the previous hearing he had told the Tribunal that a bomb had been thrown at his house.  The Tribunal asked the appellant why he had not raised this matter when asked about further harm.  He responded that the Tribunal had not specifically asked him about it.  The Tribunal asked the appellant why he had not raised this incident of a bomb being thrown at his house and detonating, in his primary application and supporting statement.  The appellant’s explanation for the failure to raise this matter, as a fact demonstrating a well‑founded fear of persecution from Muslim men either for political reasons or a combination of political or religious reasons, was that the application had been written by someone else on his behalf. 

30                  On 19 July 2007, the appellant gave evidence to the third Tribunal the subject of the present proceedings.  The appellant confirmed that he had operated a shop in his home town selling umbrellas in 2003 when on 14 November 2003 two Muslim men attacked him, beat him and cut him with a knife in order to discourage him from discounting the price of umbrellas.  The appellant showed the Tribunal the scar on his head.  The appellant told the Tribunal that on 16 November 2003, two days after the attack, a bomb was placed in his house.  The appellant explained that the bomb had been thrown at him.  He ran away.  The bomb detonated.  His dog was killed.  The Tribunal asked him why he had not mentioned the bombing incident in his application.  The appellant responded that he did so.  The Tribunal noted that it could not find any mention of the incident of the bomb in the appellant’s application.  The appellant said that the bomb incident had been mentioned in a second application.  The Tribunal put to the appellant that it could not find a second application.  The Tribunal member observed that the appellant had mentioned the incident of the bomb at the first Tribunal hearing and the appellant agreed with that chronology. 

31                  The appellant told the Tribunal that the day after the bombing incident, he sold his shop and went to Singapore.

32                  The Tribunal asked the appellant to identify the reasons why he had been targeted by Muslim men.  He said it was because of his membership of the SNDP and that he was being targeted by PDP Muslim men.  The appellant repeated that he was an executive member of the SNDP in Nedumungad.  The appellant explained that there are four executive members in his home town and each member has a responsibility to look after 40 families.  The appellant said that executive members of the SNDP change each year and there are therefore presently executive members in Nedumungad.  The appellant explained the scope of his role as an executive member.  The Tribunal asked the appellant why other executive members of the SNDP could live safely in the appellant’s home town without being targeted.  The appellant explained that he was more effective and did a better job than others and thus attracted attention.  The appellant also said that other members were in a different district and did not exhibit the additional complication of operating a shop attacked by Muslims.  The appellant accepted that he had been targeted by Muslim men, members of the PDP, because he was an executive member of the SNDP and because he owned an umbrella shop that competed with Muslim shop owners.  However, when the Tribunal put to the appellant that he would not be the subject of harm if he did not operate such a shop, the appellant said that his position as an executive member of the SNDP was the problem.  The appellant then told the Tribunal that he had received a letter from his wife telling him not to return as Muslim men were seeking him out because of “the old revenge with the shop and the SNDP”.  

33                  The Tribunal then put to the appellant that it could find no independent country information of attacks on SNDP members in Kerala State other than one report of an office being vandalised in June 2005 by another SNDP member.  Nevertheless, the appellant contended that there is a real problem between Muslims and Hindus and in the preceding week, a bomb had exploded in Nedumungad.  The Tribunal put to the appellant that it could find no information of such attacks on SNDP members.  The appellant responded that Nedumungad was a small place – just a village.  The appellant repeated that PDP Muslim members would “get him and kill him” and the Tribunal put to the appellant that it could not identify any country information disclosing attacks upon SNDP members by PDP members in Kerala.  The appellant continued to assert that such conduct is occurring. 

34                  The appellant confirmed that his claim was that he was targeted by Muslim men and not Hindu extremists.  The Tribunal put to the appellant that he had been attacked in his shop for commercial reasons and not a Convention reason.  The appellant said that the attack was due to his activity at the shop and by reason of his membership of the SNDP.  The Tribunal also put to the appellant that his fears of attack as an SNDP member seemed odd when other executive members of the SNDP had not been attacked and there were no reports of any such attacks.  The appellant told the Tribunal that his home town area is dominated by Muslims. 

35                  The Tribunal then isolated a range of background information.  The Tribunal examined websites and literature explaining the history and the social, cultural and political values of the SNDP.  The Tribunal examined a range of websites which explained the aims, structure and general activities of the SNDP.  All of the sources are extensively identified at AB176 to AB179.  I will not repeat them in these reasons.  At AB179, the Tribunal examined website information and literature in relation to the PDP.  Similarly, I will not recite the content of that analysis in these reasons.  As to attacks upon members of the SNDP, the Tribunal noted that a June 2005 article reported the vandalization of a SNDP administrative office allegedly by supporters of an ousted SNDP Union president.  The Tribunal could find no other information disclosing attacks on SNDP members from 2003 to the date of its decision and nor could the Tribunal find information describing violence by PDP members against SNDP members in the period from 2003 to the date of the decision, in Kerala.  In the material accessed by the Tribunal to describe the aims, structure, general activities and political activities of the SNDP, the Tribunal noted articles confirming that the SNDP has a number of branches in Kerala with presidents, secretaries and Union committee members.  The articles note that the general secretary in 2003 and 2007 was Vellappally Natesan and in June 2007, Dr. M.N. Soman was elected SNDP president.  In October 2003, one month before the attack upon the appellant, the president of the SNDP was C.K. Vidyasagar.  The “general activities” searches informed the Tribunal that the SNDP was involved in trade unionism, education policy, schools and colleges and operated a financing institution providing loans to members as well as technical training.  The Tribunal’s searches include material indicating the scope of the “political activities” of the SNDP. 

36                  Against this background, the Tribunal found it odd that having regard to the extensive available information on the structure, scope, general activities and political activities of the SNDP, there was no information which brought to light social disturbances in the form of attacks upon members of the SNDP from November 2003 to the date of the Tribunal hearing, by PDP members in Kerala. 

37                  Having reviewed all of the evidence given by the appellant, the Tribunal then at AB180 to AB182 set out its findings and reasons. 

38                  The Tribunal recited the appellant’s claim to fear persecution in India because he will be, should he return, attacked or targeted by PDP Muslim men as he was a member of the SNDP in his home town of Nedumungad in Kerala from 2000 to 2004.  The Tribunal noted that the appellant at that time owned and operated an umbrella shop which undercut competing Muslim shop owners.  The Tribunal noted that the appellant claimed to have been beaten in November 2003 and attacked with a knife and that two days later his house had been bombed.  The Tribunal noted that since his departure the PDP had threatened him by coming to his  home in India and by telephone.  The appellant feared that he would be killed by PDP members if he returned and that the police had failed to protect him since the incident on 14 November 2003. 

The Tribunal’s decision

39                  The Tribunal reached these conclusions. 

40                  It accepted that the appellant “may have been targeted” by Muslim shop owners on 14 November 2003 for undercutting other traders.  It accepted that the appellant “may have been” an executive member of the SNDP.  The Tribunal did not accept that the appellant had been targeted by PDP members for those two combined reasons.  The Tribunal found that the appellant’s testimony as to the individuals who had perpetrated the attack upon him on 14 November 2003 and the reasons for the attack were inconsistent with independent country information and “implausible amounting to a fabrication”.  The Tribunal at AB180 said:

This [the inconsistency with independent country information] leads the Tribunal to find that the applicant was not targeted in India by the PDP for a Convention reason, rather for commercial reasons by other Muslim shop owners for selling umbrellas cheaply.  It finds that other Muslims will not harass him for selling umbrellas cheaply in the future as he has stopped selling umbrellas and sold his shop.  [emphasis added]

41                  Accordingly, the Tribunal weighed the appellant’s evidence against the independent country information and reached a conclusion of implausibility and a fabrication of evidence based on a perceived inconsistency between the two.  There was of course no direct inconsistency but simply an absence of country information in circumstances where the Tribunal had an expectation that the content of the appellant’s claims would have been supported by some objective evidence of PDP attacks on SNDP members, if such conduct had been occurring.  The Tribunal seemed to accept in terms of the quote at [40] that the appellant had been targeted by competing Muslim shop owners, for commercial reasons, namely, “selling umbrellas cheaply”.  The Tribunal then reinforced the importance of the perceived inconsistency by referring in the next and final paragraph at AB180 to no independent country information documenting attacks on members of the SNDP from 2003 but for one incident involving an SNDP administration office and, in particular, no independent country information documenting attacks on SNDP members by PDP members from 2003. 

42                  At AB180 and AB181, the Tribunal recited its reliance on online “Factiva” database information of major international and foreign language newspapers, magazines, wire services, journals and analyst reports, together with website information and particular articles, as the basis for no identifiable independent country information.  The Tribunal then said that the absence of any information of attacks on SNDP members since 2003 by PDP members or otherwise meant that “there is no objective evidence to support [the appellant’s] claims”.  The Tribunal then explained the importance of the absence of any information providing objective evidence to support the claims by observing at AB181, as follows:

[The Tribunal] expects that if the applicant was attacked because of his membership of SNDP, that many other SNDP members would also have been attacked, particularly those in higher positions and that there would be some reporting or country information on such attacks by the PDP.  It notes that the vandalization of a SNDP office was found in country research and [the Tribunal] would expect personal attacks on the SNDP and personal attacks by the PDP to be similarly reported.  It considers that the lack of evidence of any attacks on the SNDP, or any attacks by the PDP on SNDP members is strong evidence that there is no evidence to support his claim.  [emphasis added]

43                  The Tribunal then rejected the appellant’s contention that since there is no evidence before the Tribunal which contradicts the appellant’s evidence, he should be given the benefit of the doubt.  The Tribunal repeated at AB181 its contention that:

… the Tribunal conducted thorough country information research and would expect that if attacks are being made on the applicant, even recently, although he ceased to be a member in 2004 that there would be many others who are or were members of the SNDP who would be targeted by the PDP and that there would be some reports of these attacks.  [emphasis added]

44                  At AB181, the Tribunal further reinforced this view by introducing its immediately following statement of findings, with the phrase:

As the Tribunal could find no independent country information to support such attacks by the PDP on members of the SNDP, …

The Tribunal then made these findings:

… the Tribunal does not accept that the applicant was targeted by PDP members in 2003 because he was a member of the SNDP or for undercutting other Muslim umbrella sellers, or the combination of the two, that his house was bombed by members of the PDP in 2003 as he claims, that members of the PDP have threatened him by coming to his home in India and that he will be killed by PDP members if he returns to India.  [emphasis added]

45                  Similarly, in reliance upon the lack of evidence found through independent country information of any attacks on SNDP members, the Tribunal did not accept the further claim of the appellant that a bomb had been detonated relatively recently (“last week” – having regard to the third Tribunal hearing date) in Nedumungad. 

Further findings of the Tribunal

46                  Apart from the findings all predicated upon the absence of any independent country information objectively supporting PDP attacks upon SNDP members, the Tribunal relied upon these additional matters.  At AB181 it said this:

In addition, the Tribunal does not accept his evidence that his house was bombed as he claims by members of the PDP in 2003 as he did not mention this in his statement attached to his protection visa application, only at the first Tribunal hearing.  The Tribunal would expect that an applicant whose house had been bombed only days after the initial attack would recall this event in his original statement.  The applicant did not directly comment on this in his reply to the S424A [letter from the Tribunal].

                                                                                                [emphasis added]

47                  Thus, the Tribunal gave emphasis to the appellant’s failure to mention at the outset in his protection visa application, the attempt upon his life by the bombing attack immediately after the physical attack at the shop in November 2003 and gave emphasis to the failure of the appellant to respond properly to the S424A letter.  Secondly, the Tribunal although accepting that the appellant was an executive member of the SNDP, did not accept that he would be targeted by PDP members for that reason should he return to Kerala.  The Tribunal concluded that such a claim was inconsistent with the appellant’s own evidence that other SNDP executive members were living safely in Kerala.  Further, the Tribunal was comforted in its view of that matter by the fact that research undertaken by the Tribunal of independent country information did not reveal any information of attacks by the PDP on SNDP members from 2003 to date, in Kerala.  The third matter given emphasis by the Tribunal was a perceived inconsistency between the position adopted by the appellant at the Tribunal hearing on 19 July 2007 as compared with statements contained in the appellant’s original application document.  In his original application, the appellant claimed that he had been targeted by Hindu extremists.  On 19 July 2007, the appellant confirmed that his claims were based upon conduct by Muslim extremists.  The appellant had explained the inconsistency on the footing that a person other than the appellant had prepared his original application.  Nevertheless, the Tribunal thought that inconsistency or at least difference of position, relevant. 

48                  Fourthly, the Tribunal identified matters it regarded as reflecting inconsistencies in the evidence given by the appellant concerning the role, in terms of persecution conduct, of his being a Hindu.  The Tribunal at AB182 said this:

At the first Tribunal hearing the applicant also claimed that he was targeted in India because he was Hindu.  At the second hearing he said that while he was targeted as a Hindu, it was because he was a leader.  At the third Tribunal hearing he said he was targeted for being an executive member of the Hindu SNDP Party. 

                                                                                                [emphasis added]

49                  The Tribunal then reached this finding:

The Tribunal does not accept that the applicant will face persecution if he returns to India because he is a Hindu.  It accepts that he may have been targeted for undercutting other Muslim umbrella sellers and that he was also a Hindu.  However, as the applicant has since sold the shop it does not accept that he will be targeted just because he is a Hindu.  The applicant also did not claim at the recent Tribunal hearing that he will be targeted in India just because he is a Hindu, rather that he was a executive member of the SNDP and similarly claimed at the second Tribunal hearing that he was targeted as he was a leader of Hindus, an executive member of the party, not just by being a Hindu.

                                                                                    [emphasis added]

The consequences of these findings

50                  It follows that the Tribunal relied substantially on independent country information as part of its fact‑finding function to assess the credibility of the claims made by the appellant of a well‑founded fear of persecution for a Convention reason.  The Tribunal examined the content of the claims and sought to test the inherent probability of aspects of the appellant’s story by reference to contemporaneous independent country reports.  However, although the Tribunal substantially relied upon its unsatisfied expectation that independent country reports would have revealed attacks by members of the PDP upon SNDP members had they been occurring from 2003 until the date of determination, the Tribunal also made an assessment of the appellant’s evidence to determine whether inconsistencies had emerged in the course of the appellant’s evidence.  The failure to mention the bombing incident immediately after the physical attack in November 2003, in the appellant’s protection visa application, was a real matter of inconsistency of treatment by the appellant in the assertion of the central facts grounding a claim to a well‑founded fear of persecution.  The weight to be attributed to it was entirely a matter for the Tribunal and in attributing weight, the Tribunal elected to place emphasis upon the appellant’s failure to deal with that matter in his reply to the S424A letter, at least to the satisfaction of the Tribunal.  Secondly, the Tribunal thought that the appellant’s evidence that other executive members of the SNDP were living safely in Kerala was inconsistent with a claim that Muslim members of the PDP would cause the appellant harm by reason of his executive membership or former executive membership of the SNDP.  Additionally, the Tribunal thought that the change in position by the appellant from his initial statement that he had been targeted by Hindu extremists to an assertion that he had been targeted by Muslim extremists was a matter of relevance notwithstanding the appellant’s explanation for the inconsistency.  Finally, the Tribunal placed emphasis upon a perceived change in position by the appellant from one where he asserted that he was targeted in India because he was a Hindu to one where he was targeted because he was a leader as an executive member of a Hindu party. 

51                  It seems to me therefore that whatever the position might have been had the Tribunal simply relied upon an absence of corroborative independent country information as a sole foundation for rejecting the appellant’s evidence, the Tribunal was entitled to have regard to independent country information in the context of its expressed concern about the inconsistencies in the appellant’s evidence.  The weight to be attributed to and accuracy as to those inconsistencies and the relationship between those inconsistencies and reliance upon independent country information was entirely a matter for the Tribunal.  Accordingly, there was evidence before the Tribunal in the discharge of its fact‑finding role that provided a foundation for the findings it reached. 

52                  Accordingly, the appellant has not made out the grounds of appeal contended for and recited at [3], [4], [5] and [6] of these reasons.  As to the grounds recited in the application before the Federal Magistrates Court which are also relied upon as grounds of appeal before this Court, a review of the Tribunal’s reasons does not support the contention that the Tribunal disregarded evidence or that the Tribunal member failed to apply his mind to the review task.  The contention that the Tribunal reached wrong conclusions of fact is a matter of merits review.  As to the amended application which the appellant similarly treats as grounds of appeal before the Court, there is no substance in the contention that the Tribunal failed to address the real facts.  Having regard to the reasons of the Tribunal reflecting a review of the evidence given before the three Tribunal hearings and the response to the S424A letter, the appellant has not established that the Tribunal reached its decision “in haste”.  I have treated the appellant’s reliance upon the matters raised by the application and amended application before the Federal Magistrates Court as matters alive for the purposes of the grounds of appeal simply because the appellant has not been represented throughout the various proceedings. 

53                  The appeal must be dismissed with an order that the appellant pay the first respondent’s costs of and incidental to the appeal. 

Associate:

Dated:         20 November 2008