Applicant S1050 of 2003 v Refugee Review Tribunal

[2005] FCA 1756

FEDERAL COURT OF AUSTRALIA

Applicant S1050 of 2003 v Refugee Review Tribunal [2005] FCA 1756

APPLICANT S1050 OF 2003 v REFUGEE REVIEW TRIBUNAL AND MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 2687 of 2003

MOORE J
29 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2687 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

APPLICANT S1050 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:

MOORE J

DATE OF ORDER:

29 NOVEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application for an order nisi be dismissed.

2.The applicant pay the second respondent's costs fixed in the sum of $1500.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2687 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

APPLICANT S1050 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:	MOORE J
DATE:	29 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an order nisi filed in the High Court on 28 May 2003.  That application has been remitted to this Court.  The application concerns a decision of the Refugee Review Tribunal ("the Tribunal") of 31 August 1998 affirming a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") to refuse to grant the applicant a protection visa.

2. The applicant is a national of India and arrived in Australia in September 1996.  He applied for a protection visa in October 1996 and that application was refused by a delegate of the Minister in May 1997.  In support of the application, the applicant claimed that he had a well founded fear of persecution because of his actual or imputed political opinion.  That was said to arise because he was always seen to be a Sikh extremist militant living in the Punjab.

3. The Tribunal was prepared to accept some aspects of the applicant's account of his experiences in India but rejected significant aspects of his claims.  The Tribunal was satisfied, having regard, in particular, to independent country information, that the applicant was not at risk of persecution were he to return to India.

4. In the draft order nisi filed in the High Court on 28 May 2003 six numbered but unparticularised grounds were set out.  In written submissions filed in this court on 25 November 2005 different grounds have been set out.  I treat the most recent articulation of the grounds as the grounds the applicant relies on.  Those grounds are:

   1.The Tribunal fell into jurisdictional error in as much as it focused its attention on the issue of credibility and it failed to take properly into account other evidence and materials in relation to the plight of many Sikhs who had suffered persecution by reason of religious and political beliefs and for practicing religious and political belief or for their imputed political and religious beliefs.

   2.The Tribunal fell into jurisdictional error in not considering the claims raised by me in the hearing time, the fear of persecution by reason of the political and religious beliefs.

   3.The Tribunal made jurisdictional error in failing to correctly consider and apply the test of well founded fear of persecution for the purpose of the Convention.

   4.The Tribunal made a jurisdictional error in making its decision relying on other sources of available country information, to doing so the tribunal made a breach of fundamental requirement of the Migration Act 1958 (Cth).

5. It is not apparent to me that the Tribunal fell into jurisdictional error in its consideration of the applicant's case.  The Tribunal was entitled to balance the account given by the applicant with other information it had to determine whether the applicant's account should be accepted.  Having engaged in that balancing exercise, the Tribunal was entitled to reach the conclusions it did.  It is not apparent to me that the Tribunal failed to have regard to the applicant's claims or misapplied the law in considering them.

6. A complaint appears to be made that the Tribunal determined the matter on a basis different to that determined by the delegate of the Minister.  Even if that is so, that is a manifestation of the Tribunal doing what it is required to do.  The Tribunal was obliged to consider the material put to it as well as other relevant material available to it and form a view about whether the applicant had a well founded fear of persecution.  The Tribunal concluded the applicant did not have a well founded fear and, as noted above, it is not apparent to me that it fell into jurisdictional error in reaching that conclusion.

7. Accordingly, the applicant has not established arguable error on the part of the Tribunal.  I propose to dismiss the application for the order nisi and order that the applicant pay the Minister's costs fixed in the sum of $1500.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:             13 December 2005

The Applicant appeared in person.
Solicitor for the Second Respondent:	Australian Government Solicitor
Date of Hearing:	29 November 2005
Date of Judgment:	29 November 2005