Manifest unreasonableness and ignoring persecution
8 The meaning and content of the first Ground of Appeal is not self-evident. But it seems to allege error on the part of the Federal Circuit Court Judge in not concluding that the Tribunal had acted in a "manifest[ly] unreasonable way" because the Tribunal had "ignored" the claims of "persecution and harm". The Ground also seems to allege that the Tribunal had acted in a "manifest[ly] unreasonable way" because it failed to "observe" some unspecified "obligation". But perhaps the "obligation" being referred to is the need for the Tribunal to properly consider and resolve the claims of persecution being advanced by the husband.
9 In the absence of a conclusion that the Tribunal did not in fact give "proper, genuine and realistic consideration" to the claims being advanced (cf. Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J; Williams v Minister for the Environment and Heritage [2003] FCA 535 at [29], (2003) 74 ALD 124 at 130 per Wilcox J), Ground 1 comes perilously close to an impermissible attempt to review the merits of the Tribunal's decision.
10 Some content can (perhaps) be given to the contention that there has been a failure to consider "persecution and harm" as sought to be raised in Ground 1 by reference to the Grounds upon which the Application before the Federal Circuit Court were advanced. Ground 4 in that Application provided as follows (without alteration):
The Tribunal failed to investigate applicants claim, specially the grounds of persecution in India. Therefore, the Tribunal decision dated 28 February 2013 was effected by actual bias constituting judicial error.
This Ground was rejected essentially for two reasons - first, there was said to be "no general obligation on a RRT to investigate an applicant's claims" and there was said to be no basis identified by the now-Appellants that "would have prompted an obligation on the part of the RRT to investigate his claims further"; second, the published reasons of the Tribunal failed to disclose any "bias" and no further materials were filed by the now-Appellants to support their assertions as to bias.
11 In so concluding, no error is discernible in the reasoning of the Federal Circuit Court Judge and, in particular, no error in the identification of the relevant legal principles and their application to the facts before that Court.
12 In this Court, the first Ground of Appeal has been construed in part as an assertion that the Court below erred in rejecting the same argument as previously advanced. So construed, the Ground is rejected.
13 If Ground 1 is construed as an attempt to recast the argument that was rejected in the Court below, and as an attempt to assert that the claims to "persecution and harm" were not genuinely considered, the argument is equally without merit.
14 Moreover, and as noted by the Federal Circuit Court Judge, the Ground as previously advanced was "unsupported by particulars, evidence or oral or written submissions". The failure to provide particulars or other assistance in respect to the arguments sought to be advanced for judicial resolution make the task more difficult. In the absence of such assistance, there is no reason to doubt the genuineness of the consideration given to the claims of persecution by both the delegate and the Refugee Review Tribunal. Any failure to "investigate" those claims is not readily apparent.
15 The Application for the protection visa received by the Department on 23 March 2012 stated that the husband feared persecution and annexed a "typed statement". That statement recounted asserted persecution and intimidation of the husband by the "local BJP leader" in the following terms (without alteration):
I had left India in 2010 and went to New-Zealand on 2010. I went to New Zealand as visitor and got affiliated in a college in Diploma of Business course. I had finished the Diploma course on 2011. I never went back to India from New Zealand because of fear of persecution. The BJP members threatened to kill me. I was a businessman in India and an active member of Congress party. I had worked with the Congress party leaders during the election and other issues. Modi's regime is one of the most corrupt governments in the country. We demanded that Nerendra Modi-led government should step down. Modi is in power in Gujarat state for long time and his party member became untouchable. General public and local business had been suffering from systematic corruption and money extortion. The local BJP leader realised my activities and warned me many occasions. But my political belief and expression of this could not hinder by this intimidation and I pursued with my party political work. I was even canvassing house to house and distributed leaflets, organised mini meeting among the area youths in last general election. At one stage they attacked me and humiliated me in front of the public to have a low profile. My wife pleaded me to curtail my party work, but I wanted to adhere to my sacred basic human right of freedom of expression and expressed my political belief surpassed all this intimidation. Furthermore my true patriotism towards mother India made me canvas vigorously.
16 The fundamental difficulty now confronting the Appellants is that these claims were in fact considered by both the delegate and, more importantly, the Tribunal. The Tribunal, in its reasons for decision, thus extracted the text of the "typed statement". The Tribunal, moreover, set forth the inquiries it made of the First Appellant during the course of the hearing. Thus, and by way of example, the reasons for decision of the Tribunal state in part as follows:
The Tribunal asked what harm he hears, and from whom. He said he fears the BJP government as they threatened to kill him. The Tribunal asked when they threatened to kill him and he said in the 2009 election Raj Singh starting threatening him. The Tribunal asked when exactly this was and he said in 2009 after the election. The Tribunal again asked when that was and he said exactly in 2009. The Tribunal said when exactly in 2009, and he said after 15 days of election after 10 days. The Tribunal asked again when he said at his business place in October of November 2009. The Tribunal asked whether he was threatened or beaten at that time and he said beaten by Raj Singh's people, BJP people, 5-6 people, he was injured completely with swelling on his body. The Tribunal asked what were his injuries and he said swelling and red or black bruises. The Tribunal asked where the bruises were and he said on his legs, arms and waist. He did not go to the police. He went to hospital and stayed there for 1 month. The Tribunal asked what kind of treatment did he have and he said doctor gave him medicines and injections and the Tribunal said what for and he said for his swelling and bruises and he applied ointment.
The Tribunal thereafter separately made findings in respect to "the applicant's claims", including the following:
The Tribunal finds there is no basis for the applicant's claims to fear persecution. The Tribunal is satisfied that if the applicant returns to India there is no real chance that he will be harmed for a political opinion or imputed political opinion, or for any other Convention-based reason. The Tribunal is satisfied that there is no real chance that the applicant will be at risk of persecution for any Convention-based reason should he return to India in the foreseeable future.
There is, with respect, no substance in the submissions that the Tribunal "failed to investigate" the claims being made and no substance in the submission that the Tribunal "ignored" any aspect of those claims. Nor is there any substance in any more generally expressed concern that the decision of the Tribunal was "unreasonable".
17 Before this Court, the First Appellant in his short oral submissions failed to identify any particular line of "investigation" which he contended should have been undertaken. In the absence of any "readily identifiable" line of inquiry which may emerge on the face of materials advanced for consideration, and in the absence of a claimant even attempting to identify any such line of further inquiry, no jurisdictional error is exposed on the part of the decision-maker resolving a claim upon the basis of the materials placed before him.
18 Of more immediate relevance, no appellable error is discernible in the reasons for decision of the Federal Circuit Court Judge. Even if it were permissible for this Court, on appeal, to reconsider for itself whether any jurisdictional error is discernible in the reasons for decision of the Tribunal, no such error emerges.
19 However the first Ground of Appeal is construed, and however the claims of the Appellants are presented, the first Ground of Appeal is without substance. It is rejected.