FEDERAL COURT OF AUSTRALIA SZOJE v Minister for Immigration and Citizenship [2010] FCA 1405 Citation: SZOJE v Minister for Immigration and Citizenship [2010] FCA 1405 Appeal from: SZOJE v Minister for Immigration and Citizenship [2010] FMCA 551 Parties: SZOJE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number(s): NSD 1016 of 2010 Judge: GREENWOOD J Date of judgment: 15 December 2010 Catchwords: MIGRATION – consideration of an application for leave to appeal from a decision of the Federal Magistrates Court of Australia Legislation: Migration Act 1958 (Cth), ss 36, 65, 415, 425, 425A, 441A, 441C, 426A Federal Court of Australia Act 1976 (Cth), ss 24(1)(d), 24(1A), 25(2)(a) Cases cited: SZOJE v Minister for Immigration and Citizenship [2010] FMCA 551 - cited Craig v South Australia (1995) 184 CLR 163 - cited Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 - cited Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 – cited Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531 - cited General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 - cited Dey v Victorian Railways Commissioners (1949) 78 CLR 62 - cited Agar v Hyde (2000) 201 CLR 552 - cited Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 - applied SZLSI v Minister for Immigration and Citizenship [2008] FCA 1052 - cited Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564 - cited Date of hearing: 2 November 2010 Date of last submissions: 2 November 2010 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 63 Counsel for the Applicant: The Applicant appeared in person Solicitor for the First Respondent,: Ms K Hooper, DLA Phillips Fox IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1016 of 2010 BETWEEN: SZOJE Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GREENWOOD J DATE OF ORDER: 15 DECEMBER 2010 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the costs of the first respondent of and incidental to the application. 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 Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1016 of 2010 BETWEEN: SZOJE Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GREENWOOD J DATE: 15 DECEMBER 2010 PLACE: BRISBANE REASONS FOR JUDGMENT 1 In these proceedings the applicant seeks leave to appeal from a judgment of the Federal Magistrates Court of Australia dismissing the proceedings before that Court under Rule 44.12 of the Federal Magistrates Court Rules: SZOJE v Minister for Immigration and Citizenship [2010] FMCA 551. 2 By s 476 of the Migration Act 1958 (Cth) the Federal Magistrates Court is invested, in relation to migration decisions (as defined), with the original supervisory jurisdiction of the High Court under para 75(v) of the Constitution. A decision of the Refugee Review Tribunal (the "Tribunal") to affirm a decision of the Delegate of the Minister for Immigration and Citizenship to refuse the applicant, under s 65 of the Migration Act, the grant of a Protection (Class XA) visa is, of course, a "privative clause decision" if made, proposed to be made, or required to be made under the Migration Act or under a regulation or other instrument made under that Act: s 474(1) and (2). 3 The Tribunal's decision of 26 March 2010 fails to satisfy the statutory description of "a decision made under [the Migration Act]" in discharge of the Tribunal's statutory review function under Part 7 of the Migration Act if reached in error of jurisdiction as that term is understood according to settled principle: Craig v South Australia (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]; and Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531. 4 Procedural rules governing proceedings in which a remedy in the exercise of the Federal Magistrates Court's jurisdiction under s 476 is sought are set out at Part 44 of the Federal Magistrates Court Rules. 5 Rule 44.05 provides that an application may be made supported by an affidavit (satisfying r 44.05(2)) for an order that the respondent show cause why a remedy should not be granted in the exercise of the Court's jurisdiction under s 476 of the Migration Act in relation to a migration decision. The applicant commenced a proceeding under r 44.05 on 21 April 2010 and sought a show cause order concerning the Tribunal's decision of 26 March 2010. The application was supported by an affidavit of that date. 6 The grounds relied upon in the application were that the applicant satisfies the criteria required by law to be established in order to demonstrate that he is a refugee, the Tribunal failed to address the legal issues, and the Tribunal failed to consider the evidence put before it by the applicant. By his affidavit, the applicant contended that the Tribunal failed to consider country information; took into account irrelevant considerations; failed to deal with the matter according to law; and, failed to "go into" the circumstances under which Sikhs in India are persecuted, with the result that the Tribunal failed to examine the persecution the applicant contended he had suffered. 7 On 18 June 2010, the applicant filed a document called an "Amended Application". That document at paras 1 to 6 and para 12 sets out facts the applicant asserts in support of the merits of his contention that he holds a wellfounded fear of persecution for a Convention reason and is thus a refugee for the purposes of the 1951 Convention Relating to the Status of Refugees (as amended by the 1967 Protocol) and the Migration Act. By the amended document at paras 7 to 11, the applicant contends that the Tribunal failed to have regard to "independent" country information; failed to consider the circumstances of the applicant's claim to be a refugee; failed to consider the "particular" circumstances of the applicant's case; simply relied upon "other cases"; failed to make "findings" in the course of exercising the review function; relied too heavily on the reports of the Indian government concerning the condition of Sikhs in India; and was affected by bias. 8 In the amended document, the applicant contended at para 11 that "the whole statement of [reasons in support] of the decision is an essay rather than a decision". The decision is said to be a unilateral decision which has no bearing on the relevant facts or documents put before the Tribunal. 9 The Federal Magistrate dealt with the matter on this footing. 10 The application came before the Court on 19 July 2010 in order to determine whether the applicant had demonstrated an arguable case for the making of an order that the respondents show cause why relief ought not to be granted to the applicant. Cameron FM proceeded on the footing that if the applicant were able to demonstrate an arguable case for the making of a show cause order, a further hearing would later be held to determine whether substantive relief ought to be granted. Rule 44.12 provides that at the hearing of an application for an order to show cause, the Court may dismiss the application if it is not satisfied that the application has raised an arguable case for the relief claimed: r 44.12(1)(a). Alternatively, if the Court is satisfied that an arguable case has been made out, the Court may adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed ought not to be made: r 44.12(1)(b). Alternatively, the Court might make final orders in relation to the claims for relief without adjourning the proceeding and ordering the respondent to show cause at a final hearing. 11 The Federal Magistrate conducted a hearing under r 44.12 and dismissed the application on the footing that an arguable case had not been made out. In determining that matter, Cameron FM proceeded on the basis that a dismissal of the application would not be ordered except where a lack of a cause of action is clearly demonstrated or the claim is groundless or there is a high degree of certainty about the outcome: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Dey v Victorian Railways Commissioners (1949) 78 CLR 62; Agar v Hyde (2000) 201 CLR 552. 12 Cameron FM's decision made under r 44.12 is an interlocutory decision of the Federal Magistrates Court as the judgment simply determines whether the applicant has satisfied the threshold of demonstrating an arguable basis for a show cause order. The decision is not finally dispositive of the substantive question of whether the Tribunal's decision was affected by jurisdictional error. Rule 45.12(2) seeks to declare that a dismissal of an application under r 44.12(1)(a) is an interlocutory decision of the Court. Although r 44.12(1)(a) attempts to dispel unhelpful disputes about whether such a decision is interlocutory in nature and thus whether leave to appeal is necessary, the real question is whether the decision, in fact, as a matter of proper characterisation, is finally dispositive of the substantive right to a remedy on the contended ground of demonstrated jurisdictional error. 13 Plainly enough, the dismissal of the applicant's proceeding is not finally dispositive in that sense and the decision operates as an interlocutory decision. 14 Section 24(1)(d) of the Federal Court of Australia Act 1976 confers appellate jurisdiction on the Federal Court in appeals from judgments of the Federal Magistrates Court exercising original jurisdiction under a law of the Commonwealth, relevantly here, the Migration Act. Section 24(1A) provides that an appeal shall not be brought from a judgment referred to in [s 24(1)(d)] that it is an interlocutory judgment unless the Court or a judge gives leave to appeal. By s 25(2)(a), an application for leave to appeal is to be heard and determined by a single judge of the Court unless either s 25(2)(e) or (f) is engaged, and in these proceedings, neither provision is engaged. 15 Accordingly, the applicant seeks leave to appeal from the decision of Cameron FM given on 19 July 2010. 16 The grounds of appeal are those set out in the applicant's affidavit filed 9 August 2010. By that affidavit, the applicant makes these contentions. 17 First, the decision of Cameron FM "suffers from legal errors coupled with jurisdictional errors". 18 Second, the applicant's case was not decided according to law because the decision of Cameron FM did not take account of the "real harm" faced by the applicant arising out of his membership of the "Khalistan Commando Force". 19 Third, the decision of Cameron FM fails to recognise that the decision of the Tribunal (and that of the Minister's Delegate) is affected by legal and jurisdictional errors. 20 Fourth, although the applicant put material before the Tribunal demonstrating a wellfounded fear of persecution, the Tribunal did not "bother to look in to the claim … [that] has caused the miseries and difficulties to the life of the [applicant]". 21 Fifth, Cameron FM overlooked the "important issue" of the applicant's involvement in the Khalistan movement. 22 Sixth, the applicant was "made a victim at the hands of Indian authorities" and this aspect of the applicant's claim of persecution was not taken into consideration by the Tribunal and it follows that Cameron FM fell into error by failing to recognise the failure on the part of the Tribunal to consider this aspect of the matter. 23 Seventh, the applicant contends that his case falls within Division 4 of Part 7 of the Migration Act and "this was not taken into consideration by any of the respondents" (that is, by the Tribunal). 24 The well understood question to be determined in an application for leave under the broad discretion conferred by s 24(1A) is whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by an appellate court and whether substantial injustice would result if leave were refused assuming the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; SZLSI v Minister for Immigration and Citizenship [2008] FCA 1052; Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564. 25 The central criticism made of the interlocutory judgment is that Cameron FM failed to recognise that the applicant had made out a case of arguable error on the part of the Tribunal. That arguable error consisted, it is said, of a failure by the Tribunal to recognise and consider evidence put to it by the applicant of the sources of real harm he faced in his country of origin as an active Sikh member of the Khalistan Commando Force fighting for an independent Sikh State of Khalistan. The applicant's participation in this movement was, it is said, the cause of his persecution, illtreatment, harassment and fear for his life at the hands of Indian authorities. Thus, he says, he has made out a case of arguable error because the Tribunal failed to consider these circumstances in determining that it could not be satisfied that the applicant held a wellfounded fear of persecution for Convention reasons concerning his political and religious views. 26 Exhibited to the applicant's affidavit filed 9 August 2010 is a draft notice of appeal. There are three grounds of appeal which take up the matters deposed to in the affidavit. By ground 1, the notice of appeal sets out facts which go to the contention that Cameron FM failed to determine the actual harm faced by the appellant notwithstanding that the question of the state of satisfaction as to the facts supporting a contended wellfounded fear of persecution for a Convention reason is a merits matter for the Tribunal itself. By ground 2 of the notice of appeal, the applicant contends that he submitted "the whole evidence of his being involved in the Khalistan Movement resulting in … the murders of many hundred thousand [of Sikhs]" from which a "judicial inference" should be drawn that the applicant faces a danger of his "life being taken away" and thus holds a wellfounded fear of persecution for a Convention reason. By ground 3, the applicant contends that "the Respondents" (by which the applicant must be taken to mean the Tribunal as the nominated respondent) failed to apply "proper law and procedure". 27 By s 414 of the Migration Act, the Tribunal has a statutory duty to review the decision of the Tribunal if properly made in respect of a reviewable decision. By s 415, the Tribunal may exercise all of the powers and discretions conferred by the Act upon the decisionmaker. By s 36(2), a criterion for a protection visa is that the applicant is a noncitizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (as those terms are defined). By s 65(1), if the Minister, after considering a valid application for a protection visa, is satisfied of the statutory matters, the Minister is to grant the visa. In exercising the review function, the Tribunal must be satisfied (as the Minister had to be satisfied) that the applicant is a person to whom Australia owes protection obligations and thus the Tribunal must be satisfied that the applicant holds a wellfounded fear of persecution for a Convention reason should he return to his country of origin. 28 The applicant applied for a protection visa on 13 November 2009 and attached to that application a statement of facts setting out the matters upon which he relied in demonstrating that he held a wellfounded fear of persecution for a Convention reason. On 12 January 2010, the Minister's Delegate wrote to the applicant requesting him to attend an interview with a departmental officer on Thursday, 21 January 2010 at 9.00am. The applicant did not attend that interview. The letter explained that the purpose of the interview was to provide the applicant with an opportunity to present any new information relating to his application. Because the applicant did not attend the interview no further information in support of the applicant's claims was put before the Delegate (which might also have been put before the Tribunal). The factual matters relied upon by the applicant are set out in his statement which consists of 10 paragraphs. The Delegate refused the grant of a protection visa and on 16 February 2010 the applicant applied for review of that decision. No new information was placed before the Tribunal. 29 On 16 February 2010, the Tribunal wrote to the applicant acknowledging receipt of the application. 30 On 25 February 2010, the Tribunal sent a letter to the applicant by registered post at the address nominated by the applicant advising him that the Tribunal had considered the material put before it but was unable to make a favourable decision on that information alone. The information consisted of the application form completed by the applicant and the statement attached to that application. Consistent with s 425, the Tribunal invited the applicant to appear before it and give evidence and present arguments relating to the issues arising in the review. The letter nominated 1.00pm (New South Wales time) on 24 March 2010 at the nominated place as the time and place for the applicant's appearance before the Tribunal. The applicant was advised that if he failed to attend the hearing, the Tribunal may make a decision without taking any further action to enable the applicant to appear before it. 31 The applicant did not respond to the hearing invitation and failed to appear before the Tribunal. Nor did the applicant explain to the Tribunal the reasons for his failure to attend. 32 In the course of the hearing of the applicant's application for leave to appeal, I asked the applicant to explain the reason for his failure to attend the hearing of the Tribunal. The applicant said that he was sick at the time and he did not know the procedure or what to do. By s 426A, the Tribunal is entitled to make a decision in discharge of the review function without taking any further action to allow or enable the applicant to appear before it in the event that the applicant fails to appear before the Tribunal after receiving an invitation to do so in accordance with s 425 of the Act. 33 Accordingly, the Tribunal proceeded to undertake a review of the Delegate's decision on the basis of the information before it. 34 In doing so the Tribunal had regard to the applicant's statement and considered each of the contentions made in that statement. In undertaking that task the Tribunal isolated the facts identified by the applicant in support of his claims. The Tribunal observed that the statement was in some respects difficult to follow as it lacked dates or a clear chronology. 35 The Tribunal however identified these material matters. 36 The applicant completed higher secondary school education in New Delhi and then commenced farming activities with his family. The applicant was interested in the political welfare of Sikhs throughout India. He said that Hindu extremists, Indian authorities and members of the army had victimised Sikhs. The Tribunal noted the references to the events at the Golden Temple and the applicant's observation that many of his relatives were killed in that period. The applicant, together with his friends, was an active member of an organisation called the "All India Sikh Student Federation". He was a supporter of the Khalistan movement and a supporter and member of an organisation called the "Shiromani Akali (A) Party". The applicant contended that the Khalistan movement operated within the law and sought recognition for an independent Sikh state. 37 The Tribunal noted that the applicant claimed to have become a member of the Party's central committee and he worked actively in that role. The Tribunal noted the claims that members of security agencies followed the applicant and his friends by reason of these activities and that the applicant was interrogated on many occasions and also arrested. No dates for these events are set out in the statement. The Tribunal notes the applicant's claim that the police mistreated him and then handed him over to military intelligence officials working within the Punjab Police Special Branch. The applicant claimed that he had been detained for three months under a law which was not reviewable in any court of law. He contended that he had been interrogated and accused of having links with the "Pakistani ISI". The applicant contended that he had been physically tortured and suffered sleep deprivation. He contended that he (with others) had been released after promising not to engage in any political activities. The applicant resumed engaging in political activities. The applicant contended that after the general elections, the authorities again "arrested and bashed" him, filed a false case against him and continued to harass him after the case was dismissed. The applicant contended that by reason of these matters he (and others) had to flee India and the applicant travelled to Australia. He contended that he feared being killed should he return to India. 38 The Tribunal expressed these views arising out of its review of those claims. 39 The Tribunal was satisfied that the applicant had been provided with an opportunity to present evidence and arguments in support of his claims. 40 The Tribunal found that the applicant's statement contained a number of "vague, unsubstantiated assertions" and that the Tribunal had insufficient information before it in relation to a number of matters and was thus unable to be satisfied that the applicant held a wellfounded fear of persecution for a Convention reason. The matters about which the Tribunal had insufficient information were these. 41 First, the information concerning the applicant's claimed involvement and role ("profile") in promoting Sikh rights was insufficient. In particular, the Tribunal considered that information concerning the applicant's references to being a "religious Sikh", his family background and other motivations for political activity were insufficient. Similarly, particulars were not given in the statement of the applicant's commitment to the "All India Sikh Student Federation", the "Shiromani Akali (A) Party" and other groups related to the Khalistan movement. Details of the applicant's personal activities as a member of the central committee of the Party were not provided. Details of the applicant's later resumption of his activities as a member of the Party's central committee were not given. Details of his role in recruiting young people to the Party's student wing were not provided in the statement. Details of the applicant's later resumption of activities despite warnings from Indian authorities and his continued engagement in those activities were not provided. 42 Secondly, the Tribunal concluded after examining the statement that particulars and a clear chronology of the persecution the applicant claimed to have suffered was not provided including: Whether any harm suffered by relatives in the past has any bearing on his motivations or profile now; the timing and circumstances in which the security agencies pursued the applicant and his friends; details of the claimed threemonth detention, interrogation and other mistreatment; the claimed threats and warnings for him to refrain from political activities; details of the accusations by political opponents that the applicant was a Pakistani agent; details of the renewed official mistreatment of him after the general elections (the arrest, assault and laying of false charges); details of the false charges and why they were dismissed; and the continued harassment of the applicant and his family and friends, including death threats. 43 Thirdly, the Tribunal considered that inadequate information was given concerning details of the consequences of the harm he alleged such as the implications for the applicant's livelihood (and that of his family); efforts to seek support or protection; and the circumstances of his travel to Australia. 44 Fourthly, the Tribunal considered the facts contained in the statement insufficient as to the applicant's fears regarding his return to India including any identification of those who may seek to kill him, their motivations and any other harm the applicant contended might befall him. 45 Having regard to the Tribunal's consideration of the statement and its reservations about the insufficiency of information on the relevant topics addressed by the statement, the Tribunal reached the following conclusions at paras 36 and 37 of its reasons: 36. On the limited evidence before it, and without further details and clarifications, the Tribunal is not satisfied that the applicant is a politically active Sikh, who has supported separatist groups; that he is perceived as such; that the India authorities have harmed him in the past (including monitoring, detention, physical abuse, death threats and/or false case); that his friends or family have been subject to threats or other harm; that he has ever required protection from such harm; or that he has any political or other interest that may motivate him to engage in relevant conduct if he returns to India. In the light of this uncertainty, the Tribunal is not satisfied that the applicant faces a real chance of Conventionrelated persecution. 37. The Tribunal is therefore unable to be satisfied that the applicant has a wellfounded fear of persecution for one or more of the Convention reasons, now or in the reasonably foreseeable future, if he returns to India. 46 In considering the applicant's grounds in support of an application for an order to show cause set out in the application filed on 21 April 2010 and the amended application filed 18 June 2010, Cameron FM reached these conclusions. First, the Tribunal's invitation to the applicant complied with the statutory requirements as to the content of the invitation, the details of the addressee and the method of despatch. In reaching that conclusion, Cameron FM considered the operation of ss 425, 425A, 441A, 441C(4) of the Migration Act and Regulation 4.35D of the Migration Regulations 1994 (Cth). Accordingly, the Tribunal had discharged its obligations under the Migration Act and by reason of the applicant's failure to attend the hearing, the Tribunal was entitled to act under s 426A and make a decision on the review. Cameron FM concluded that there was no miscarriage of the discretion conferred upon the Tribunal by s 426A of the Act. 47 Second, Cameron FM concluded that in so far as the applicant's application for an order for review relied upon grounds that the Tribunal ought to have been satisfied, by the facts set out in the applicant's statement, that he held a wellfounded fear of persecution for a Convention reason, the applicant was simply inviting the Federal Magistrates Court to substitute its own view for that of the Tribunal on the factual merits of the applicant's claims. 48 Third, Cameron FM concluded that the Tribunal had identified the correct criteria to be applied in determining whether it could be satisfied that the applicant held a wellfounded fear of persecution for a Convention reason. Cameron FM concluded that the lack or insufficiency of evidence put before the Tribunal taken in conjunction with the applicant's failure to attend a hearing led the Tribunal to conclude that it could not be satisfied that the applicant held a wellfounded fear of persecution for a Convention reason, and that conclusion was open to the Tribunal. 49 Fourth, the applicant's contention that the Tribunal had taken into account, improperly, country information and had given emphasis to the information and views of Indian authorities, was held to be unsupportable as the Tribunal based its decision upon the statement of the applicant and its views as to the sufficiency of information which might inform its state of satisfaction. Cameron FM concluded that the Tribunal's decision was not based on country information and to the extent that the applicant contended that the Tribunal might have or could have made inquiries as to the state of persecution or harassment of Sikhs, the Tribunal was under no obligation to do so. Fundamentally, the Tribunal examined the applicant's statement and considered whether in the light of those facts it could be satisfied that the applicant held a wellfounded fear of persecution for a Convention reason. 50 Fifth, Cameron FM concluded that because the Tribunal acted on the statement put to it by the applicant (accompanying the original application) and considered the sufficiency of information contained in the statement, it did not take into account irrelevant considerations. The Tribunal expressed concerns about the sufficiency of information going to the matters put to it by the applicant. 51 Sixth, Cameron FM concluded that the Tribunal did not misapply the law. The Tribunal proceeded on the basis that it had to be satisfied of the relevant matters. The field of inquiry adopted by the Tribunal related directly to the matters contained in the applicant's statement. 52 Seventh, Cameron FM concluded that there was nothing in the decision record of the Tribunal's review of the Delegate's decision that supported an allegation of bias on the part of the Tribunal. 53 As to the grounds of appeal sought to be agitated on the footing that leave is given, the position is this. 54 First, the decision of Cameron FM does not suffer from legal errors coupled with jurisdictional errors as contended. Cameron FM has correctly analysed the grounds agitated in the applicant's application before the Federal Magistrates Court. 55 Second, the question before Cameron FM was not whether the Federal Magistrates Court ought to consider or take account of the "real harm" faced by the applicant arising out of his membership of the "Khalistan Commando Force" but whether the applicant had demonstrated arguable error on the part of the Tribunal in failing to take account of the factual contentions advanced by the applicant as to that matter before the Tribunal. The Tribunal took into account each of the factual matters addressed in the applicant's statement including the question of the applicant's contended participation in the various organisations and movements agitating for an independent Sikh State. 56 Third, Cameron FM correctly examined the approach adopted by the Tribunal in determining whether the Tribunal had applied the correct legal tests and whether the Tribunal had taken into account the factual contentions advanced by the applicant. 57 Fourth, although the applicant placed facts before the Tribunal which formed the basis of his contention of persecution, the question to be determined by the Tribunal was whether it could be satisfied, on the basis of those facts, that the applicant held a wellfounded fear of persecution. The contention that the applicant placed material before the Tribunal demonstrating a wellfounded fear of persecution is simply an expression of the opinion of the applicant. The Tribunal could not be satisfied on those facts that the applicant held a wellfounded fear of persecution for a Convention reason and the notion that the Tribunal did not "bother to look in to the claim [that] has caused the miseries and difficulties to the life of the [applicant]" is not borne out by an examination of the applicant's statement and the treatment of that statement by the Tribunal leading to its reservations about the insufficiency of information before it. 58 Fifth, the contention that Cameron FM overlooked the "important issue" of the applicant's involvement in the Khalistan movement is not made out. The question before Cameron FM was whether the evidence demonstrated that the Tribunal had taken into account the applicant's claims or whether the Tribunal had reached a decision concerning its state of satisfaction by ignoring a relevant matter. The factual question of whether the applicant had engaged with others in the Khalistan movement was not a matter to be decided by the Federal Magistrates Court. 59 Sixth, Cameron FM did not fall into error by failing to recognise that the Tribunal had failed to consider whether the applicant had been "made a victim at the hands of Indian authorities" as the analysis of the Tribunal's reasons by Cameron FM correctly identified that the Tribunal had examined the facts put to it by the applicant as to the sources of contended persecution, ill treatment and harassment. 60 Seventh, the Tribunal discharged its obligations in relation to the invitation to attend a hearing issued to the applicant and its election to proceed under s 426A in reaching its decision. 61 Each of the above matters addresses the grounds advanced before this Court in the applicant's affidavit filed 9 August 2010. Each of those matters is the subject of a draft notice of appeal. Ground 2 of the draft notice of appeal, as indicated earlier, asserts that the appellant placed "the whole of the evidence" concerning his involvement in the Khalistan movement before the Tribunal, and that evidence "made out a case" which "really requires the judicial inference" that the applicant's life is in danger, and thus, as an inferential conclusion, the applicant holds a wellfounded fear of persecution by reason of his political and religious views. That question however is entirely a matter for the Tribunal and the state of satisfaction it might be able to reach on the basis of the evidence and arguments relating to the issues arising in connection with the decision under review put to it by the applicant. No arguable case is made out on the footing that the Federal Magistrates Court ought to have drawn an inference that on the basis of the facts and evidence put before the Tribunal, the applicant held a wellfounded fear of persecution for a Convention reason. 62 The Tribunal did not reach a conclusion in the discharge of its review function which was unsupported by evidence. It conducted an analysis of the applicant's statement and expressed concerns about the absence of relevant dates, a chronology and specific content of a range of the claims which led it to the conclusion that it could not be satisfied of the relevant matters. 63 The applicant has failed to demonstrate that Cameron FM fell into error in finding that the applicant had failed to demonstrate an arguable case of jurisdictional error on the part of the Tribunal. Accordingly, the application for leave to appeal must be dismissed with an order that the applicant pay the costs of the Minister for Immigration and Citizenship of and incidental to the application. I certify that the preceding sixty-three (63) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate: Dated: 15 December 2010