SZMCI v Minister for Immigration and Citizenship [2009] FCA 98 (9 February 2009)

Last Updated: 17 February 2009

FEDERAL COURT OF AUSTRALIA

SZMCI v Minister for Immigration and Citizenship [2009] FCA 98

SZMCI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1798 of 2008

GRAHAM J
9 FEBRUARY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1798 of 2008

BETWEEN:

SZMCI Applicant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	9 FEBRUARY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application filed 19 November 2008 be dismissed.
2. The Applicant pay the Respondent Minister’s costs.
   

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.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1798 of 2008

BETWEEN:

SZMCI Applicant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	GRAHAM J
DATE:	9 FEBRUARY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The matter presently before the Court is an Application For Extension Of Time To File And Serve Notice of Appeal in a migration matter. The application is made pursuant to Order 52 rule 15 of the Federal Court Rules. Relevantly, rule 15(2) provides:

‘15(2) ...the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.’

2. The application for an extension of time was filed on 19 November 2008. The extension of time was sought so as to allow an appeal to be brought from a judgment of the Federal Court Magistrates Court of Australia of 22 October 2008. The time for filing the Notice of Appeal without leave expired on or about 12 November 2008. The application was supported by two affidavits of the applicant who has been identified for the purposes of these proceedings as ‘SZMCI’. The first affidavit was filed 19 November 2008, and the second affidavit was sworn on 5 February 2009 and filed on 6 February 2009. To the first affidavit a draft notice of appeal was attached. The relevant ground sought to be relied upon was as follows:

‘1. His Honour committed an error of law in dismissing a judicial review application from the decision of the Second Respondent in circumstances where the Second Respondent committed jurisdictional error in not considering the practicalities and reasonableness of relocation when finding the appellant’s fear of persecution was not well-founded.

Particulars:

1. The Tribunal found the appellant suffered beatings in the past which constituted serious harm but that any continuing threats merely constituted verbal harassment.
   
2. During the hearing before the Tribunal the appellant said that there was no safety anywhere for him in India.
   

100. The Tribunal’s finding in relation to lack of Convention based persecution was critically reinforced by its finding that the threats received by the appellant were not sufficiently serious to constitute Convention based persecution as “any threat of harm was not such that the applicant took it seriously enough as to seek to relocate away from the family home”.’
     

3. It is common ground between the parties that in order for the Court to make a finding of special reasons within the meaning of Order 52 rule 15(2) there must firstly be a satisfactory explanation for the delay in bringing the matter before this Court, and secondly, the applicant must demonstrate an arguable case. In respect of the explanation for the applicant’s delay in this case it may be noted that the first respondent accepts the explanation detailed in the affidavits to which reference has already been made. The question of whether or not the applicant has demonstrated an arguable case is another matter.
4. The applicant’s counsel submits that this is a case which should be addressed as one where consideration should have been, but was not, given to the reasonableness of the applicant relocating within the country of his nationality.
5. It does not seem to me, from a reading of the Statement of Decision and Reasons of the Refugee Review Tribunal in this matter, that this was addressed as a relocation case at all. It will be recalled that in SZFDV v Minister for Immigration and Citizenship [2007] HCA 41; (2007) 233 CLR 51 at [14] Gummow, Hayne and Crennan JJ said:

‘14 ... As indicated in the reasons in SZATV [referring to SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 which was heard concurrently with SZFDV], and as a general proposition to be applied to the circumstances of the particular case, it may be reasonable for the applicant for a protection visa to relocate in the country of nationality to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution.’

6. Decisions upon the grant or refusal of protection visas are made, in the first instance, by the Minister, his or her powers normally being exercised by one or other of the Minister’s delegates for the purposes of s 65 of the Migration Act 1958 (Cth) (‘the Act’).
7. Section 65 of the Act relevantly provides:

‘(1) After considering a valid application for a visa, the Minister:

(a) if satisfied that:
...
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; ...
...
is to grant the visa; or

(b) if not so satisfied, is to refuse to grant the visa.’

8. A decision to refuse to grant a visa is a RRT-reviewable decision within the meaning of the Act (see s 411(1)(c)). Section 412 makes provision for applications for review of RRT-reviewable decisions. Under s 415(1) of the Act the Tribunal may, for the purposes of the review of an RRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
9. Section 420 of the Act provides for the process whereby the Tribunal exercises its powers, as follows:

‘(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2) The Tribunal, in reviewing a decision:

(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case.’

10. The purpose of a provision such as s 420(2) was explained by Gummow and Heydon JJ, with whose reasons Gleeson CJ agreed, in Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs) and Another; ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437 at [56] (‘Applicant S154/2002’) as follows:

‘56 ... The purpose of a provision such as s 420(2) is to free bodies such as the tribunal from certain constraints otherwise applicable in courts of law which the legislature regards as inappropriate. Further, ... administrative decision-making is of a different nature from decisions to be made on civil litigation conducted under common law procedures. There, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have considered it in their respective interests to adduce at trial.’

11. The relevant criterion for the grant of a protection visa to which s 65(1)(a)(ii) refers is to be found in s 36(2) of the Act, which relevantly, for present purposes, provides as follows:

‘(2) A criterion for a protection visa is that the applicant for the visa is:
(a) 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; ...’

The Refugees Convention means the Convention Relating to the Status of Refugees, done at Geneva on 28 July 1951 and the Refugees Protocol means the Protocol Relating to the Status of Refugees, done at New York on 31 January 1967. Hereafter I will refer to the Refugees Convention as amended by the Refugees Protocol as ‘the Convention’.

12. Plainly, satisfaction under s 65(1) is not to be addressed by deciding where the truth lies on the balance of probabilities. Whilst cases such as Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 (‘Rajalingam’) refer to the ‘civil standard of proof’ being not irrelevant to the process of fact-finding by the Tribunal and cases such as Kalala v Minister for Immigration and Multicultural Affairs [2001] FCA 1594; (2001) 114 FCR 212 (‘Kalala’) refer to the Tribunal being obliged to consider matters on ‘a standard less than the balance of probabilities’ (see at [25]), I doubt the utility of addressing matters on which the Tribunal has to be ‘satisfied’ by a standard which is related to the standard of proof required in adversarial civil litigation.
13. As has been said many times, proceedings in the Tribunal are not adversarial, but rather, inquisitorial. The Tribunal is not in the position of a contradictor of the case advanced by an applicant. The Tribunal member conducting the relevant inquiry is not an adversarial cross-examiner, but an inquisitor obliged to be fair (see per Gummow and Heydon JJ in Applicant S154/2002 at [57]; see also Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 at [40]).

The Tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which an applicant chooses not to embark on. It is for an applicant to advance whatever evidence or argument he or she may wish to advance before the Tribunal and for the Tribunal to decide whether the relevant claim has been made out (see per Gummow and Heydon JJ in Applicant S154/2002 at [57]-[58]).

Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of pre judgment (per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [48]).

14. In NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6; (2005) 222 CLR 161 (‘NAGV’) the High Court considered s 36(2) of the Act in the form in which it existed prior to the passage of the Border Protection Legislation Amendment Act 1999 (Cth). Relevantly, for present purposes, Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ said (at [31]-[33]):
    

‘31 ... a perusal of the Convention shows that, Art 33 apart, there is a range of requirements imposed upon Contracting States with respect to refugees some of which can fairly be characterised as “protection obligations”. Free access to courts of law (Art 16(1)), temporary admission to refugee seamen (Art 11), and the measure of religious freedom provided by Art 4 are examples.

32 ... Section 36(2) does not use the term “refugee”. But the “protection obligations under [the Convention]” of which it does speak are best understood as a general expression of the precept to which the Convention gives effect. The Convention provides for Contracting States to offer “surrogate protection” in the place of that of the country of nationality of which, in terms of Art 1A(2), the applicant is unwilling to avail himself. That directs attention to Art 1 and to the definition of the term “refugee”.

33 Such a construction of s 36(2) is consistent with the legislative history of the Act. This indicates that the terms in which s 36 is expressed were adopted to do no more than present a criterion that the applicant for the protection visa had the status of a refugee because that person answered the definition of "refugee" spelt out in Art 1 of the Convention.’

(Footnotes omitted.)

15. Article 33(1) of the Convention, to which reference was made in NAGV [2005] HCA 6; 222 CLR 161, provides:

‘1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.’

16. The question of who answers the description of a ‘refugee’ is relevantly determined by Art 1 of the Convention which relevantly provides:

‘A. For the purposes of the present Convention, the term “refugee” shall apply to any person who:
...
(2) ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership 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.’

17. The definition of ‘refugee’ is couched in the present tense and the text indicates that the position of the putative refugee is to be considered on the footing that that person is outside the country of nationality. The reference then made in the text to ‘protection’ is to ‘external protection’ by the country of nationality, for example by the provision of diplomatic or consular protection, and not to the provision of ‘internal protection’ provided inside the country of nationality from which the refugee has departed (per McHugh and Gummow JJ in Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14; (2002) 210 CLR 1 at [62] (‘Khawar’), cited with approval by Gummow, Hayne and Crennan JJ in SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 at [16] (‘SZATV’)).
18. The definition of ‘refugee’ presents two cumulative conditions, the satisfaction of both of which is necessary for classification as a refugee. The first condition is that a person be outside the country of nationality ‘owing to’ fear of persecution for a relevant Convention reason, which is well-founded both in an objective and a subjective sense. The second condition is met if the person who satisfies the first condition is unable to avail himself or herself ‘of the protection of’ the country of nationality. This includes persons who find themselves outside the country of their nationality and in a country where the country of nationality has no representation to which the refugee may have recourse to obtain protection. The second condition also is satisfied by a person who meets the requirements of the first condition and who, for a particular reason, is unwilling to avail himself or herself of the protection of the country of nationality; that particular reason is that well-founded fear of persecution in the country of nationality which is identified in the first condition (per McHugh and Gummow JJ in Khawar [2002] HCA 14; 210 CLR 1 at [61], cited with approval by Gummow, Hayne and Crennan JJ in SZATV at [16]. See also Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 (‘Chan’); Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 at 283 (‘Applicant A’) and Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1 at [19] (‘S152’)).
19. Where diplomatic or consular protection is available, a person must show, not merely that he is unwilling to avail himself of such protection, but that his unwillingness is owing to his fear of persecution. He must justify, not merely assert, his unwillingness. A claimant's unreasonable refusal to seek the protection of his home authorities would not satisfy the requirements of Art 1A(2) (per Gleeson CJ, Hayne and Heydon JJ in S152 at [19]).
20. Because it is the primary responsibility of the country of nationality to safeguard fundamental human rights and freedoms, the international responsibility has been described as a form of ‘surrogate protection’. ‘Protection’ in that sense has a broader meaning than the narrower sense in which the term is used in Art 1A(2) but, so long as the two meanings are not confused, it is a concept that is relevant to the interpretation of Art 1A(2) (per Gleeson CJ, Hayne and Heydon JJ in S152 at [20]. See also per Gummow, Hayne and Crennan JJ in SZATV at [20]).
21. It is well settled since Chan and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (‘Guo’) at 571-572, 596 that the requirement that the ‘fear’ be ‘well-founded’ adds an objective requirement to the examination of the facts and that this examination is not confined to those facts which form the basis of the fear experienced by the particular applicant (per Gummow, Hayne and Crennan JJ in SZATV at [18]). A fear is ‘well-founded’ where there is a real substantial basis for it (see Guo at 572).
22. Section 91R of the Act relevantly provided:

‘(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

(b) the persecution involves serious harm to the person; and

(c) the persecution involves systematic and discriminatory conduct.’

23. In s 91R(2) instances of ‘serious harm’ for the purposes of s 91R were identified. These included:

‘(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person's capacity to subsist;’

24. It is instructive to have regard to observations of members of the High Court in VBAO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 60; (2006) 233 CLR 1 (‘VBAO’). In that case Gleeson CJ and Kirby J said at [1] and [3]:

‘1 Depending upon context, the word “threat” can mean a communication of an intention to harm, or it can mean a likelihood of harm. The word has other meanings as well, but those are the two possibilities of present relevance ...
...
3 Both the immediate and the wider context make it plain that in s 91R(2)(a), “threat” is used in the second sense. A past communication of an intention to harm a person may, or may not, be some evidence that there is a likelihood of future harm to the person’s life or liberty, but the question for the decision-maker is whether there is such a likelihood. The decision-maker is required to consider future persecution that involves serious harm, and one instance of such serious harm is a threat to life or liberty. The decision-maker is to decide the risk of future harm, not the risk of future communications. ...’

25. Threats to life or liberty in the form of declarations of intent do not, without more, constitute the serious harm which persecution must involve. The term ‘threat’ connotes ‘risk’ in the sense of danger or hazard. The threat to life or liberty must manifest itself as an instance of serious harm as distinct from a possibility of danger (per Gummow J in VBAO at [18]. More is required than a possibility which is capable of instilling a fear of danger to life or liberty (per Gummow J in VBAO [20]).
26. The Convention is framed to ensure that persons will not be exposed to persecution, as defined by Australian law, if they were to return to the country which they have left. If any threat or relevant risk is not current or prospective, then there can be no well-founded fear of persecution. Neither the Convention nor s 91R of the Act can be read as if a threat of sufficient gravity which has passed, has not been renewed or revived, and is unlikely to be renewed or revived for a Convention reason, will suffice to give rise to the requisite ‘well-founded’ fear (per Callinan and Heydon JJ in VBAO at [50]).
27. The applicant in this case was born in Gujarat in India on 1 March 1972. He claimed to be a Muslim and that, in order to earn some money, he assisted local butchers to slaughter cows. He claimed that he was persecuted in India for his religion.
28. The Tribunal found that on a number of occasions he assisted local butchers to slaughter animals including the slaughter of cows. Under the laws of the State of Gujarat the slaughter of cows was illegal. The Tribunal found that the applicant did the work in question purely for the income he derived and did not do so for any religious reason.
29. Counsel for the applicant urged that the applicant had a well-founded fear of persecution for reason of his membership of a particular social group being persons who slaughtered cows in Gujarat State.
30. The applicant had obtained a passport in India on 29 December 2003. He obtained an Australian student visa on 27 June 2007. He departed Mumbai on 29 July 2007 arriving in Australia on 30 July 2007. On 31 August 2007 he applied for a Protection (Class XA) visa which was refused by a delegate of the Minister on 3 October 2007.
31. On 9 October 2007 he applied to the second respondent, the Refugee Review Tribunal (‘the Tribunal’), for review of the Minister’s delegate’s decision. He was invited to attend a hearing of the Tribunal and did so on 6 December 2007. On 6 February 2008 the Tribunal member decided that the decision of the Minister’s delegate not to grant the applicant a Protection (Class XA) visa should be affirmed. That decision was handed down on 19 February 2008.
32. On 27 March 2008 the applicant applied to the Federal Magistrates Court of Australia for constitutional writ relief in respect of the Tribunal’s decision. That application was dismissed on 22 October 2008, an order being made for the payment by the applicant of $5250 costs to the Minister. It is in relation to that decision of Scarlett FM that the present application under Order 52 rule 15 has been instituted.
33. The applicant’s family home was in Vavol, a community of some six to seven thousand inhabitants. He lived there all of his life. Vavol is located in the State of Gujarat. He was married and had two children who were at the time of the hearing before the Tribunal aged 10 and three and a half years. The appellant’s wife’s family lived some 20 kilometres removed from Vavol.
34. As previously mentioned the Tribunal accepted that the applicant assisted local butchers to slaughter animals on a number of occasions and that he assisted in the slaughtering of cows. However, the Tribunal found that the applicant did that work purely for the income he derived and did not do it for any religious reason.
35. The Tribunal asked the applicant to describe the problem that he experienced in Vavol. He said that he used to do work as a butcher sometimes and people from the VHP and the RSS [which I would understand to be references to Visva Hindu Parishad and Rashtriya Swayamsevak Sangh], did not like it and they used to inform the police of his actions.
36. I digress to record the finding of the Tribunal that the police had no evidence that the applicant was involved in bovicide and had no interest in pursuing the applicant in relation to any offence against the laws of the State of Gujarat for any part he played in the slaughter of cows in the past.
37. When asked by the Tribunal when his problems started he said it was about eight to nine months before he left India, that is to say, in the latter months of 2006. He said that he was threatened and beaten by Hindu people who regarded cows as sacred. He said the problems started when the people came to know that he was catching cows and sheep to butcher them.
38. When asked if he continued to slaughter cows he said that he did not. He said he stopped that work. The Tribunal asked when he stopped doing the work and he said he stopped as soon as people started harassing him. The Tribunal asked whether people continued to threaten him even when he stopped the work. He said that they did. He told the Tribunal that he was very upset. He said that maybe this was one of the reasons why his wife left him. The Tribunal asked the applicant when he finished the work of slaughtering animals and he said that it was approximately seven months before he left India. The Tribunal asked him then what those people who were harassing him were saying over that period after he had stopped and before he left India. He said that they were still not sure whether he was slaughtering the cows or not. He said that they thought because he was a Muslim he must be doing it and they told him to be careful.
39. Importantly, the Tribunal accepted that the applicant was threatened and beaten on a number of occasions in 2006 by persons whom he believed were local Hindus who opposed his actions in slaughtering cows. However, it did not accept that such persons reported his actions to police and further accepted the applicant’s evidence that the police never questioned him in that regard. The Tribunal accepted that the applicant may continue to face low levels of verbal harassment in Vavol because of his previous actions if he returned there, but concluded that that level of verbal harassment would diminish with the passage of time.
40. The Tribunal found that there was no real chance that the applicant would suffer serious harm from the BJP [which I would understand to a reference to the Bharatiya Janata Party], the RSS or the VHP for reasons of his involvement in bovicide if he returned to India. In the circumstances the Tribunal found that the chance that the applicant would face serious harm such that it would amount to persecution if he returned to India in the near future because of his religion was remote. The Tribunal concluded that:

‘the chance is remote that the applicant will suffer serious harm amounting to persecution for reason of his religion or for any Convention related reason if he returns to India in the foreseeable future.’

41. In reaching these conclusions the Tribunal did not make any finding that at the time when he left Vavol for Australia he had a well-founded fear of persecution for reason of his religion or for his membership of a particular social group. Rather, it approached the matter as one where the risk of harm to him had abated. On page 12 of the Tribunal’s reasons the Tribunal member said:

‘The applicant claims that he ceased any involvement in the slaughter of cows as soon as he encountered difficulties and he places the events at some 7-8 months before he left India. He claims that he continued to receive threats during that time. In his evidence he told the Tribunal that people were not sure if he was still killing cows or not at that time but they thought that because he is a Muslim he must still be doing it. He said that people told him to be careful. The Tribunal accepts that the applicant continued to receive low level verbal threats from some of the Hindus in Vavol. However it concludes that such communications were not accompanied by an intention to cause actual harm to the applicant. He was able to continue to live in the family home in Vavol for the entire period up until June 2007 when he left India. At the same time his children lived in the family home and they continued their education without incident or interruption; the younger of the children was conveyed by car to school in Gandhinagar during this time. He made an application for a visa to study in Australia and according to his evidence he remained in Vavol awaiting the approval and grant of that visa for some months. No actual harm befell him in that considerable period of time. The Tribunal has considered the applicant’s explanation that he kept safe by remaining at home. It has also considered the applicant’s evidence that Vavol is a community of some 6-7,000 inhabitants and he has lived there all his life. The Tribunal finds that notwithstanding the applicant’s claim that he kept safe by remaining at home it would not have been difficult for a person intent on doing him harm to have done so. They did not do so. The Tribunal finds that any threat of harm was not such that the applicant took it seriously enough as to seek to relocate away from the family home at any time. The Tribunal heard and accepts that the applicant’s wife left his parents’ home to live with her parents because of his problems. In the first place the applicant himself could have relocated with his wife had he wished to avoid any unwanted attention in Vavol. He did not do so. In the second place the applicant could not say whether his wife has returned to Vavol or whether she is still with her parents. He had not spoken to her recently and seemed disinclined to contact her saying that if she would not want to see her children why would she want to speak to me? The Tribunal concludes on the basis of the applicant’s evidence that his wife left the family home in Vavol for reasons beyond his difficulties.’

42. It may be observed that the applicant’s wife had apparently left the husband’s family home in Vavol to go to her parents’ home some 20 kilometres away, but the applicant did not choose to join her at her parents’ home. It is true that the Tribunal member has not reconciled the statements in her reasons where she said that his wife had left his family’s home ‘because of the problems’ and that his wife had ‘left his parents’ home to live with her parents because of his problems’ with her conclusion ‘on the basis of the applicant’s evidence that his wife left the family home in Vavol for reasons beyond his difficulties.’
43. It seems to me that this is a lack of reconciliation which is of no moment.
44. The point that the Tribunal member was endeavouring to make was that in the seven to eight months leading up to his departure for Australia the applicant did not, on the Tribunal member’s findings have a well-founded fear of serious harm to himself were he to remain in Vavol as he did. As the Tribunal member found, the applicant said that people told him to be careful. She accepted that the applicant continued to receive ‘low level verbal threats from some of the Hindus in Vavol.’ However, she concluded that such communications were not accompanied by an intention to cause actual harm to the applicant. The Tribunal found that the applicant was able to continue to live in the family home in Vavol for the entire period up until June 2007 when he left India.
45. In the light of the matters of principle identified by the High Court in VBAO, it is clear that the Tribunal did not err in holding that it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Convention. It seems to me that the applicant has failed to demonstrate an arguable case, and in the circumstances there are no special reasons warranting a grant of leave to the applicant to bring the foreshadowed appeal out of time.
    

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated: 16 February 2009

Counsel for the Applicant:	J G Azzi
Counsel for the First Respondent:	J S Mitchell
Solicitor for the First Respondent:	DLA Phillips Fox

The Second Respondent filed a submitting appearance

Date of Hearing:	9 February 2009
Date of Judgment:	9 February 2009