Applicant NANZ of 2002 v MIMIA

[2003] HCATrans 485

[2003] HCATrans 485

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S34 of 2003

B e t w e e n -

APPLICANT NANZ OF 2002

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 18 NOVEMBER 2003, AT 2.29 PM

Copyright in the High Court of Australia

NANZ OF 2002 appeared in person.

MR J.D. SMITH:   May it please the Court, I appear for the respondent.  (instructed by Sparke Helmore)

GLEESON CJ:   Yes, go ahead.

NANZ OF 2002:   I would like to give my thanks to this Court for giving me a chance to represent.  I would also request the honourable Judges to consider with the time limit allowed considering my legal ‑ ‑ ‑

GLEESON CJ:   The time limit that is usual will apply in your case.  Go ahead.

NANZ OF 2002:   Okay.  I would like to bring procedural fairness the Tribunal breached.  When I had the interview with the Tribunal, the Tribunal – at the end of the hearing the Tribunal told me – which is in the supplementary application book, page 29, line 39, the Tribunal told:

I find your evidence is credible –

Again in page 31, line 15 the Tribunal said:

Totally that I accepted your credibility –

Again, on page 31, line 18 the Tribunal further told:

There is no need to give any further evidence –

And on page 29, line 40 the Tribunal said:

I have to think about some charges against you and what might happen to you if you go back –

And on page 31, line 17 the Tribunal told me:

What we have to decide is if you go back what will happen to you –

So this created a legitimate expectation that the Tribunal, having accepted my credibility, having totally accepted my credibility, totally, 100 per cent, they have not told me anything.  Totally, 100 per cent, they accepted my credibility and then said the decision will be taken based on “what will happen to you when you go back to India”.  I was thinking, “Okay.  So they accepted my credibility and they are going to verify the situation back at India”.  This gave me a legitimate expectation, but what happened later when the Tribunal delivered me the decision, the Tribunal said in application book page 11, line 34:

[The applicant] was unable to provide evidence to support this claim.  Given that he had in the past been able to secure the assistance of an advocate through his party in the past, I am unable to accept that he could not access court documents relating to this claim.

When I had an interview with the Tribunal they said, “I believe everything you say.  You are credible.  Totally, I am accepting your credibility”, but in the decision the Tribunal is blaming me for my inability to – blaming me for having my inability to access the court document.  In application book page 10, line 30 the Tribunal further said:

There is no corroborative evidence to support this claim –

But it is surprising the same Tribunal told me at the end of the hearing…..you do not have to produce any evidence, but later in the decision the Tribunal is blaming me that I have not provided any corroborative supportive evidence.  It is shocking.  I do not understand what is the meaning for credibility in the minds of the Tribunal, and that the Tribunal should have a look at that.  It is another breaching.  The Tribunal should have a look at that, …..the situation back at home because the Tribunal promised to me that they are going to look at that situation back in India, “What will happen when you go back to India”.  But instead of looking at the situation, the Tribunal was trying to create something bad about my credibility which the Tribunal already recognised.

The next point I would like to mention about application book page 11, line 8, the Tribunal while making a decision bases the decision on USDOS report on 1995 about India which:

indicates . . . the High Court rejected the case and criticised the state government for “frequent or indiscriminate use of power”.

And also based its evidence on page 12, line24:

The CPI(ML) to which the applicant belonged, while a legal party which has contested elections at State and national level, is not a threat to her government and the chance that he would again be persecuted for his political opinion is remote.

I do not really understand whether this evidence also related.  It is not related.  The Tribunal promised to me, “We will look at the situation back in India to determine the question:  what will happen to you when you go back?”  So I came to Australia and applied for refugee protection visa on January – March 1997.  From that date, until today, if anything happened – any…..or anything happen and it looks – it is better for the applicant to go back to India than the Tribunal pointing me, “Look, after you come here and applied for refugee the situation back in India has changed, so now you go back.  You will have no problem.  You will not be having any persecution at all and if there is anything the court is there to protect you.”

But I was in India in 1995.  I was in prison and I was having all kind of trouble – all sort of trouble, but…..to end when I find out I cannot do, what is the point in depending on the case – depending on the court, which accepted the false evidence – the Tribunal accepted I was – the Tribunal accepted that the court accepted a false witness and punished me.  The Tribunal accepted.  What is the point in depending on a court when the court is not even helping me?  I was not a victim of government, victim of politics.  I am also a victim of the court when they punished me by accepting the false evidence and that the Tribunal accepted this but in giving the evidence which is false, which is not even connected to me, not even relating to my case. 

I have not given any evidence which is after I left India that will be accepted but giving the evidence which is before I become a refugee it is nothing but the Tribunal trying to avoid looking into the present situation in India because the present situation the Tribunal knows it is not really good.  It is not a bona fide attempt.  It is not an honest and a genuine attempt on the part of the Tribunal.  The Tribunal has based it on – based its evidence to reject my application on CPI(ML) party which is the illegal party which is…..national level having no representative in their…..and state and it is not a threat.  I do not really understand.  This is not a – though the CPI(ML) is a small party, it is the political opinion of mine that the Tribunal could determine whether the applicant is having well‑founded fear or not – the fear is well‑founded or not.

The Tribunal should have looked at my activity instead of looking at the CPI(ML) party – the activity of the CPI(ML) party in which I belong and that there are other parties which are even smaller than CPI(ML) and that their political activities – they had been arrested and imprisoned under Prevention of Terrorism Act.  Even a member of Parliament, even a legislative member, even an editor of a daily, they were asked that and still in the gaol.

So your executive power is limited.  The law has given power which limits the Tribunal by giving the evidence, taking a decision based on – based on the Tribunal exceeding their statutory limit.  So the Tribunal also provided dishonest and a non‑bona fide attempt:

The CPI(ML) to which the applicant belonged, while a legal party which has contested elections at State and national level, is not a threat to her government, and the chance that he would be again be persecuted for his political opinion is remote.

I would like to mention supplementary application, page 58, 60 and 62.  In page 58 Mr P. Nedumaran of Tamil Nationalist Movement, his party is even smaller – much, much smaller than CPI(ML) but he was arrested – he was arrested.  He was arrested about 18 months back.  Still he is in prison because – not because his party is threat to the government.  It is only because he supported the LTTE – Liberation Tigers of Tamil Eelam.

Another person, Vaiko of the MDMK, this is also another smaller party, smaller than CPI(ML), not a political threat to the government, but he also got arrested and he in fact is a member of Parliament but he has also got arrested under the Prevention of Terrorism Act because he is another person openly supporting – giving support to the Sri Lankan Tamil cause.  Also, another nine person got arrested because they are all – not because they are all threat to the government.  It is only because they are criticising the government and that they are supporting the LTTE. 

The Tribunal accepted nearly 10 years – from 1983 to 1993 – I was supporting the Sri Lankan Tamils and the LTTE, but the Tribunal while taking the decision totally ignored that when I go back, like these people, I will also be arrested and imprisoned at least for having supported the LTTE, which the court should not have, your Honour.  Recently The Hindu, the internationally renowned English daily from Madras, has been charged with 17 criminal defamation case.  Why The Hindu English daily?  Is it a political party?  Is it a threat to the government?  No.  Because The Hindu is criticising the government, criticising the policy of the government.  That is why the government is unable to tolerate.  It is all about intolerance.  They are unable to tolerate criticism.  So humiliated they are doing something.  So they have issued a warrant against six of their top executives of the daily and they even went to another State to arrest all of them.

This one again proves the warrant – arrest warrant issued in one State is not valid in other State.  The Tribunal thinks the arrest warrant issued in one State is not valid in other State.  Therefore, whatever arrest warrant is pending on my name, I go and live in another part of India – the police cannot arrest.  That is what the Tribunal said, but in the applicant’s authority I lodged yesterday to the Court I have mentioned about the arrest warrant issued on six of the top executives of the English daily in Madras and they are given simple 15 days imprisonment and that they are all having an arrest warrant issued on their name.

The police of Tamil Nadu went to another State and had tried to arrest them.  This is one good example.  The arrest warrant issued in India, in any part of India is valid in any other part of India.  It is not true that I do not say the warrant will limited only to particular State and I have also provided the Code of Criminal Procedure.  This is the Act telling about the arrest warrant issued in India.  It does not say anything – the warrant issued in one part of India will be limited to that particular part.  The warrant issued in one part of India will be valid in other part of India.  That copy I have enclosed in the applicant’s authority, your Honour. 

The next point I would like to bring in application book page 12, line 30, the Tribunal said:

The applicant would be able to reasonably relocate to another part of India without difficulty.

The respondent has mentioned that this is unnecessary on the part of the Tribunal.  This is one very clear example of how the Tribunal acted unnecessarily considering matters which is not related to them and matters which are related to them the Tribunal purposefully ignored.  The Tribunal could find out what will happen to me when I go back.  What will happen to me when I go back?  It is a question to be decided by the Tribunal.  How can the Tribunal decide?

If the Tribunal is reasonable, if the Tribunal is sincere, honest and genuine, the Tribunal would have looked at the situation, present situation back in India, or, at least, two years, three years, not the day after I left India, before I left India, not the day before I left India.  The Tribunal does not want to look at the present situation or at least, four years, five years, from the day I left India because that situation there has not improved and even I can tell the situation there becoming bad and bad because the Tribunal – why the Tribunal does not want to look because that situation is not going to favour them to reject my application.  So, therefore, I say the Tribunal has not made an honest attempt.

GLEESON CJ:   Yes, thank you.

NANZ OF 2002:   I have to talk about ‑ ‑ ‑

GLEESON CJ:   Your time is finished now, thank you.  We do not need to hear you, Mr Smith.

In this matter the Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave.  The application is refused with costs.

The Court will adjourn now until 9.30 am on Tuesday, 2 December in Sydney.

AT 2.50 PM THE MATTER WAS CONCLUDED