Applicant A103 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCAFC 313

FEDERAL COURT OF AUSTRALIA

Applicant A103 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 313

MIGRATION – no point of principle

Migration Act 1958 (Cth)

APPLICANT A103 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND PAUL WHITE, MEMBER, REFUGEE REVIEW TRIBUNAL AND PRINCIPAL MEMBER REFUGEE REVIEW TRIBUNAL
SAD 123 of 2004

MOORE, SELWAY AND LANDER JJ
18 NOVEMBER 2004

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 123 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

APPLICANT A103 OF 2003
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

PAUL WHITE, MEMBER, REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGES:

MOORE, SELWAY AND LANDER JJ

DATE OF ORDER:

18 NOVEMBER 2004

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.        The appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 123 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

APPLICANT A103 OF 2003
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

PAUL WHITE, MEMBER, REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGES:	MOORE, SELWAY AND LANDER JJ
DATE:	18 NOVEMBER 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

MOORE J:

1. This is an appeal from a judgment of Mansfield J of 28 May 2004.  I adopt, without repeating, his Honour's account of the background leading to the proceedings before his Honour, his Honour's summary of the case that had been maintained before the Refugee Review Tribunal ("the Tribunal"), and also his Honour's summary of the Tribunal's decision.

2. Two points are raised in the appeal.  The first concerns the following conclusion of the Tribunal:

   ‘If the applicant was arrested under TADA in 1995 and released after one month as he claims, I am satisfied that this indicates that he was not of ongoing interest to the authorities in India at that time.  I note some people have been detained for many years under TADA and some are still detained.  The fact of the applicant's release after a relatively short time is an indication that he was of little interest to authorities and that he was considered to be of a low or insignificant political profile.’ 
   (emphasis added)

3. Initially the submission was made in this appeal that there was no material before the Tribunal supporting the observation that some people had been detained for many years under the Terrorist and Disruptive Activities (Prevention) Act 1978 ("TADA") and some are still detained.  However, as the submission developed it became apparent that it was not argued that there was no material before the Tribunal which could sustain that observation.  Rather, the complaint was, or appeared to be, that the Tribunal failed to detail what the material was and specifically who was detained and for what period for the purposes of then drawing the inference that because the applicant had been released after a relatively short time, he was of little interest to authorities.

4. Plainly, there was material before the Tribunal that sustained the observation that some people had been detained for many years under TADA.  It was unnecessary for the Tribunal to descend into the detail suggested in the submissions made on behalf of the appellant.  Ultimately, the Tribunal drew an inference that because the applicant had been released after a relatively short time, he was of no interest to the authorities.  That is an inference that was plainly open on the material, and reasonably made by the Tribunal.  The fact that the inference was drawn does not, in my opinion, in any way suggest jurisdictional error.

5. The second point relates to the conclusion of the Tribunal concerning relocation.  First, it should be observed that it was unnecessary for the Tribunal to deal with the question of relocation given its conclusion that the appellant did not have a well-founded fear of persecution were he to return to India.  In any event, the approach of the Tribunal was in my opinion unexceptionable.  The Tribunal addressed and identified the correct principles and then sought to deploy them in its consideration of the material before it about what the appellant had done in India and what his circumstances might be if he were to return and sought to live at some other location.  In my view, the Tribunal's consideration of this issue does not reveal error, let alone jurisdictional error. 

6. The primary judge was correct in dismissing the application.  Accordingly, I would order that the appeal be dismissed, with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:             23 November 2004

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 123 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

APPLICANT A103 OF 2003
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

PAUL WHITE, MEMBER, REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGES:	MOORE, SELWAY AND LANDER JJ
DATE:	18 NOVEMBER 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

SELWAY J:

1. I agree.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.

Associate:

Dated:             24 November 2004

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 123 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

APPLICANT A103 OF 2003
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

PAUL WHITE, MEMBER, REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGES:	MOORE, SELWAY AND LANDER JJ
DATE:	18 NOVEMBER 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

LANDER J:

1. I also agree.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated:             24 November 2004

Solicitor for the Appellant:	Silva Solicitors
Counsel for the Respondent:	S J Maharaj
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	18 November 2004
Date of Judgment:	18 November 2004