A370 of 2002 v Minister for Immigration
[2005] FMCA 539
•22 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| A370 of 2002 v MINISTER FOR IMMIGRATION | [2005] FMCA 539 |
| MIGRATION – Review of decision of RRT – whether or not relocation within the country would have been a reasonable option for the applicant – where the applicant claimed that the Tribunal had failed to look at all the material relating to the application – whether failure to do so would amount in a denial of natural justice. |
| Migration Act 1958 (Cth), s.424A(3)(a) Federal Magistrates Court Rules 2001 |
| Muin and Lie v The Refugee Review Tribunal [2002] ACA 30 NADR v The Minister [2002] FCAFC 293 W148/00A v The Minister [2001] 185 ALR 703 |
| Applicant: | JAGTAR SINGH KANG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1113 of 2004 |
| Judgment of: | Raphael FM |
| Hearing date: | 22 April 2005 |
| Date of Last Submission: | 22 April 2005 |
| Delivered at: | Sydney |
| Delivered on: | 22 April 2005 |
REPRESENTATION
Counsel of the Respondent: Mr Tim Reily
| Solicitors for the Respondent: | Ms C Gray |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs assessed in the sum of $4,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1113 of 2004
| JAGTAR SINGH KANG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India. He arrived in Australia on 27 July 2001. On 29 August 2001 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 24 October 2001 a delegate of the Minister refused to grant a protection visa and on 20 November 2001 the applicant applied for review of that decision. The Tribunal held a hearing into the applicant's claims which was attended by the applicant. On 22 October 2002 the Tribunal determined to uphold the decision not to grant a protection visa and on 14 November 2002 it handed that decision down. When the matter was being considered by the delegate a letter had been sent to the applicant [CB 33] providing him with information which would be taken into account when considering his application. The applicant responded to that letter on 11 October 2001 [CB 36-39].
The applicant's claim to have a well founded fear of persecution for the Convention reasons of race, religion, membership of a particular social group and political opinion arise out of him being a Sikh from the Punjab who is also a member of the All India Youth Congress (I). He claimed to be a leading member of that political party at a state and federal level. He claimed that in September 1998 he was accused of terrorist activities and false charges were laid against him and he was detained for a month. He claimed that he was requested to withdraw from his political activity but refused to do so. He remained in gaol but was later released on bail. He said that his house was set fire to and his uncle badly burned and died. He says that more false charges were laid against him.
The Tribunal noted that the applicant held an Indian passport and had been allowed to leave the country without difficulty. It noted that he had no documentation to support his claims concerning membership of the party or the charges that had been laid against him. The Tribunal noted that the Akali Dal was no longer in power in the Punjab but that the Congress Party was in power. In its short reasons for decision the Tribunal said:
For the reasons which follow, the Tribunal is satisfied that the applicant fabricated his claims in the hope of ensuring success in his application for a protection visa.
I do not accept that the applicant was a leader in the Congress Party as he has claimed. He was unable to adequately explain when and why he had joined the party and the nature of his involvement. I accept that it is possible that he was a member but not that he had a high profile in the party. It is therefore unlikely that he was targeted by the Akali Dal and the DJP as he has claimed. I do not accept that the applicant was arrested and detained for a month in September 1998 as he has claimed… “terrorism” in the Punjab has receded since the early 1990s and the state has been quiet for the past few years. At his hearing the applicant stated that he did not know who or which group had set fire to his house. Regarding the incident at the Sikh Festival in 2000, in his application he claimed that "the BJP did not allow us to have a meeting and invaded our stage" whilst at his hearing he claimed that the Akali Dal had prevented the Congress people from erecting a stage. These inconsistencies do not allow me to accept this claim, or the consequent claim that he was imprisoned again.
Even if the applicant's claims were genuine, relocation in another part of India would be a reasonable option for him. I have found that he did not have a high political profile. The independent evidence suggests that he would not be pursued by the Punjabi police unless this was so.
The fact that the question of relocation would be an issue was clearly indicated to the applicant in the letter from the department to which I have previously referred. The information about relocation relied upon by the Tribunal was, to my mind, information which fell within the provisions of section 424A(3)(a) Migration Act. The applicant filed an amended application for judicial review of the Tribunal's decision on 25 June 2004. He claimed that the Tribunal stated that it had looked at all the material relating to his application but it did not do so, giving rise to a denial of natural justice.
This is a claim of the type brought in the case of Muin and Lie v The Refugee Review Tribunal [2002] ACA 30 which was considered by the Full Court of the Australian Federal Court in NADR v The Minister [2002] FCAFC 293. The Full Bench made it quite clear that in order for a party to succeed in a claim of the type made in Muin, it was necessary for that party to establish the facts which had been established in that case. An assertion that those facts exist is not enough. The applicant has provided us with no indication of how he would establish that the RRT had not looked at all the material relating to his application and I am, therefore, unable to accede to his request for review upon this ground.
The applicant argues that the respondent misinterpreted all the relevant country information and the meaning of a well founded fear of persecution. Regrettably, he does not particularise this claim for our elucidation. I have read the grounds and reasons of the Tribunal and I am unable to see where the relevant country information was misrepresented. As Mr Reilly says in his written submissions:
It is apparent that the applicant was unsuccessful because of the view the Tribunal took of the facts, in particular its strong finding that the applicant was not credible and his claims fabricated. Such findings of fact are for the Tribunal par excellence: re MIMA: ex parte Durairajasingham [2000] 168 ALR 407 per McHugh J at [67].
I am satisfied that the Tribunal's credibility findings were open to it and there is no error demonstrated in its conclusions: W148/00A v The Minister [2001] 185 ALR 703 at [64 to 69] per Tamberlin and R.D. Nicholson JJ.
In his address to me today, the applicant told me that he had not been given the correct decision by the Tribunal. He told me that his solicitor had advised him that he did not have a strong case, but most significantly, he indicated that the Tribunal had erred in coming to the conclusion that as the Congress Party had now returned to power, it would be safe for him to return to the Punjab and therefore he had no fear of persecution in the reasonably foreseeable future. He argued that the Congress Party would not always be in power. A finding of this type is a finding of fact by the Tribunal and I cannot see how it can be impugned. But in any event, the situation for the applicant is confounded by the fact that the Tribunal came to another conclusion of fact, which was that he was able to relocate. In all the circumstances, I do not believe there are any matters within the Tribunal's decision that would constitute jurisdictional error. I dismiss the application. I order that the applicant pay the respondent's costs.
In regard to the costs of the matter the Minister asked for costs to be assessed in the sum of $6000. She points out through Mr Reilly that the case was commenced in the High Court and has moved down through the Federal Court into this court. I accept that this is the case but, on the other hand, the amount of legal work that was required to be done in order to arrive at the successful conclusion that the Minister has arrived at does not seem to me to be excessive. I propose to assess costs in the sum of $4,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM
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