B v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 451

FEDERAL COURT OF AUSTRALIA

NAIP v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 451

NAIP v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N87 of 2003

MADGWICK J
17 APRIL 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N87 OF 2003

BETWEEN:	NAIP APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	17 APRIL 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant is to pay the respondent’s costs.

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	N87 OF 2003

BETWEEN:	NAIP APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	17 APRIL 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

MADGWICK J:

1. This is an application for judicial review, pursuant to s 39B of the Judiciary Act 1903 (Cth), of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 16 January 2003. The decision affirmed a decision of a delegate of the respondent Minister refusing to grant the applicant a protection visa.

2. The applicant is a citizen of India who hails from Kerala State.  He represented himself to be a devout Hindu and he sought refugee status in Australia following his arrival here on 28 August 2001. 

3. In his application for a protection visa, the applicant claimed that he had a well-founded fear of persecution for reasons of political opinion.  The basis of his claim, as was put to the Tribunal, was that he became a member of an organisation known as Rastriya Soyaum Sange (“RSS”), which was banned by the Government led by Ms Indira Ghandi as an alleged terrorist organisation and he said that he had been placed under house arrest.  Later, the RSS split and the Bharateeya Janata Party (“BJP”) was formed.  The applicant says he joined that party and worked for it, but was harassed by members of the Marxist and Congress parties.  He claimed that in 1995 the Government changed and the BJP was in opposition.  Its members were harassed and the applicant said that he was a particular target because of his prominence in politics.  He claimed that his business was destroyed and he was severely injured in an attack upon him, as a result of which he was almost killed.  The applicant said that he left India because of this persecution.  He claimed that he sought refugee status in Japan unsuccessfully but finally obtained a visa to travel to Australia. 

4. The Tribunal Member, for reasons ably expressed, if I may say so, disbelieved the applicant in all material particulars.  The Tribunal said that the applicant’s evidence was quite “vague, generalised, lacked specific detail and was inconsistent and unconvincing”.  The Tribunal Member continued:

   “I do not consider the applicant was a reliable or credible witness.  This is especially so with regard to the evidence that the applicant gave at the hearing on 11 December 2002, when the applicant was unable or unwilling to provide any details or provide any substance of his claims.

   The applicant’s claims of his political activity were completely lacking in detail.  His claims were general in nature, avoiding any of the where, how, what, why and when...  He made the claim at the hearing that friends told him that he was not permitted to take any documents out of his country or [to have] any sent to him from his country.  His explanation was implausible and a nonsense.  He did not provide any detail at all of any of his activities or of the violence and attack he claimed to have suffered, except to make the general assertion he was stabbed, hit in the head and suffered in hospital of a coma for nine days.  He was unable or unwilling to say when, where, how and under what conditions the attack occurred.”

5. The Tribunal also noted that, despite the close surveillance of the authorities of travel by Indian nationals on account of fears of terrorism, the applicant had been able to obtain a passport in 1995 and to travel to Thailand, Hong Kong and Japan sometime in 1996 or 1997.  Then he returned to India and remained there without any problems until obtaining a visa to travel to Australia in August 2001, at which time he was able to leave India without difficulties or incident. 

6. The Tribunal Member observed:

   “These are not the travel details of a person who claimed to have a genuine fear of persecution in his country.”

7. Further, there was no evidence, as the Tribunal Member found, in the independent information which would suggest that members of the BJP, currently forming the Government in India, had been persecuted by members of other parties there.  Accordingly, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution by reason of his political opinion or for any other Convention reason.  The Tribunal detailed a good many matters that appeared to support these quite firm conclusions. 

8. The applicant appears unrepresented, assisted by an interpreter. His application to the Court is remarkably inadequate even by the standards of unrepresented litigants. Doing the best one can with it, he appears to be making an application for whatever form of judicial intervention that might commend itself to the court, pursuant to s 39B of the Judiciary Act 1903 (Cth). The accompanying affidavit does not suggest any error of any kind by the Tribunal. When invited by me today to say what errors the Tribunal might have made, the applicant indicated that his complaint was that he had told the truth to the Tribunal, which had not believed him.

9. Because of the seriousness of his claims and the fact that he was unrepresented, I have looked through the materials to see whether any basis for judicial review might be capable of argument, but I can find none.  A judge is of course not best placed to do this but nevertheless I have tried.  As far as I can see there is no basis at all for the court to intervene and no reason to think that the Tribunal made any error of law at all, let alone any jurisdictional error. 

10. The application to this Court must be dismissed.  The applicant is ordered to pay the respondent’s costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:            13 May 2003

Applicant appeared in person.
Counsel for the Respondent:	Ms Allars
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	17 April 2003
Date of Judgment:	17 April 2003