NAEG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs
[2002] FCA 763
•18 JUNE 2002
FEDERAL COURT OF AUSTRALIA
NAEG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 763
MIGRATION – application for review of decision of Refugee Review Tribunal affirming a decision of Minister’s delegate not to grant a protection visa.
Migration Act 1958 (Cth)
NAEG OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NO N 191 OF 2002
BEAUMONT J
18 JUNE 2002
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 191 OF 2002
BETWEEN:
NAEG OF 2002
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
BEAUMONT J
DATE OF ORDER:
18 JUNE 2002
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The application 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
NEW SOUTH WALES DISTRICT REGISTRY
N 191 OF 2002
BETWEEN:
NAEG OF 2002
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
BEAUMONT J
DATE:
18 JUNE 2002
PLACE:
SYDNEY
REASONS FOR JUDGMENT
BEAUMONT J:
INTRODUCTION
This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 25 January 2002, whereby the Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The application therefore falls within the “privative clause” regime of s 474(1) of the Migration Act 1958 (Cth) (“the Act”) (see below).
The application for an order of review, filed on 11 March 2002 was drafted by the applicant. There are no grounds set out in the application or the accompanying affidavit. In the accompanying affidavit, the applicant simply states:
“I arrived in Australia on 23 March 1999. I applied for a protection visa on 08/04/1999. The DIMA rejected my application and then I appeal for a review in RRT, but in 21/02/2002 – RRT make a decision itself.
I would like to make an appeal for a review in Federal Court.
Respected the decision of Honourable Tribunal member Kenneth Northwood in dated 21/02/2002.”
At a directions hearing on 28 March 2002, the applicant was given (but has not pursued) leave to amend his application.
BACKGROUND
The applicant in this matter is a citizen of India who arrived in Australia on 23 March 1999. On 8 April 1999 he lodged an application for a protection visa, and on 20 April 1999 a delegate of the Minister refused that application. On 30 April 1999, the applicant applied for review of that decision. On 25 January 2002, the Tribunal affirmed the decision of the Minister’s delegate.
Before the Tribunal the applicant claimed that he had suffered, and still fears, persecution in India at the hands of the Rashtriya Swayamsevak Sangh (“the RSS”) because of his membership of the (pro Moslem) Al Umma (“the UA”) party and, accordingly, because of his religion and political opinions.
The applicant is a married man with three children who conducted his own business before he left India.
Before the Tribunal, the applicant claimed that he was a member of the UA in Coimbatore in Tamil Nadu. He claimed that he took part in their activities, in providing educational opportunities for poor Muslim children. He claimed that his life was threatened on several occasions by members of the RSS, whom the applicant described as a BJP terrorist group. The applicant claimed that he took these threats seriously, as many Muslims have been killed by the RSS, including a friend of his in May 1998. He claimed that he attempted to flee from the RSS by hiding in Mahim in Maharastra; however, after a few days, he was captured by the RSS and tortured.
The applicant claimed that in February 1998, he fled to New Delhi, but was again discovered by the RSS network, who warned him to return to Coimbatore. He also claimed that the RSS network includes all Hindu extremist groups and their organisations across India.
The applicant claimed that he feared that his life was in danger from the RSS and supporters of the BJP party, and so he decided to leave India. He also claimed that the State Police of India are dominated by Hindus and that, in times of conflict between Hindus and Muslims, the police always side with the Hindus. He claimed that during riots, many Muslims have been killed by Hindu police and that the police will not protect Muslims from Hindus extremists.
The applicant made a written submission to the Tribunal on 7 June 1999. A summary of that submission is set out in the Tribunal’s decision and is, relevantly, to the following effect:
·The applicant claimed that he joined the UA in December 1988; his major activities were to arrange educational activities for poor Muslim students.
·The applicant disagreed with the view of the delegate of the Minister, that the RSS are a non-violent social/cultural Hindu organisation.
·The applicant claimed that the local RSS member in Coimbatore threatened him and told him to leave India. He claimed that his argument with the local RSS member led him to being known as opposed to RSS ideologies, and he thus became a target of the RSS.
·The applicant claimed that on one occasion in 1998, the applicant’s truck carrying grain was stopped, and looted, by RSS members. Although he complained to the police, giving names of alleged offenders, no action was taken.
·The applicant also claimed that, in February 1998, the local RSS started a riot in Coimbatore in which the shops of many Muslims were looted, including 2 owned by the applicant. After the riot, handbills were distributed, seeking to put the blame on the UA. Neither the local government authorities, nor the police, took any action to protect the Muslim citizens.
·The applicant claimed that further rioting occurred after these events, which was blamed on the Muslim community, and that demands were made that the Muslims be expelled to Pakistan.
·The applicant claimed that a group of BJP and RSS, led by a neighbour of the applicant, were looking for him and that another friend of his was kept hostage for a day, beaten and eventually killed.
·The applicant claimed that, believing himself to be on the RSS hit list, he left Coimbatore and went to Mahim (in Bombay). He stayed with friends and did not visit his business in Kurla. He was told by his manager that a “few people” had inquired as to his whereabouts. After 4 days, his friends wanted the applicant to move because he had been identified locally as a Muslim instigator of the riot in Coimbatore. The applicant then moved to Delhi.
·In Delhi, the applicant stayed with another friend for 2 weeks. Members of the applicant’s family were approached and told that if the applicant did not surrender they would be targeted. His wife was threatened with abduction and rape.
·When assistance from the Congress party was not forthcoming, the applicant claimed that he felt that he had no alternative but to leave India. Before doing so, the applicant claimed that he tried to organise a public demonstration, denouncing the anti-Muslim riots in Coimbatore.
·The applicant claimed that, at the beginning of 1998, he left Delhi and went to Nepal. In January 1999, the applicant returned to India to visit his family and claimed that he found that the RSS were still “seriously pursuing him”. The applicant then decided to leave India to come to Australia.
THE TRIBUNAL HEARING
The applicant gave oral evidence at a hearing before the Tribunal on 23 July 2001, with the assistance of an interpreter. The applicant’s adviser was not present at the hearing.
Before the Tribunal, the applicant gave evidence that he feared that, if he returned to India, the RSS would apprehend him, and kill him. He said that he first thought his life was in danger in 1988, because he had been educating the poor. He gave evidence that he operated a grain distribution business in India and that he had offices in Bombay, Delhi, Bangalore and Hyderabad. He also had 2 shops for the distribution of grain, in Coimbatore and Ukkadom.
The applicant was asked by the Tribunal member whether he held any particular position in the UA. The applicant replied that he was a general member and supporter of the organisation and that he would arrange meetings and collect donations.
The applicant also gave evidence that he had first experienced trouble with the RSS in 1988. He said that his trucks were attacked and looted. In addition, the applicant claimed that people from the RSS would ring and threaten to kill him. The applicant estimated that he had received such calls on 10 separate occasions.
The applicant was asked whether he had gone to Mahim in 1998, as claimed in his statement. The applicant replied that he had not gone to Mahim, but had gone to Nepal. The Tribunal member asked the applicant why he had said in his application that he was tortured in Mahim. The applicant said that he had not been tortured in Mahim.
The applicant was asked why, if he was at risk, he had not been killed in Mahim or Delhi. The applicant replied that he was constantly moving, and changing places.
The Tribunal member put to the applicant that, although the member accepted that the RSS had been implicated in incidents of violence and discrimination against Muslims, he could find no evidence that the RSS had hit squads that go around killing Muslim extremists. The applicant replied that what was happening in India was not coming out, and the Indian Government did not want it to come out.
The Tribunal member also put to the applicant that there was significant independent evidence to suggest that the UA was an organisation of Muslim extremists, with a terrorist track record that was outlawed by both State and Federal governments. The applicant replied that the Government were putting the blame for bombings and other violent activities on the UA and not on themselves.
The Tribunal then put to the applicant that, if the RSS wanted to kill him, it was likely to be because he was a high profile member of the UA who was suspected of terrorist activity. The applicant replied that he thought that it was because he was pro-Pakistan.
The Tribunal member also put to the applicant that, if he was a high profile person wanted by the RSS, he would not have been so easily able to leave India on a passport in his own name. The applicant replied that he had a summons out against him. The Tribunal member asked the applicant why he had not mentioned this before, or attempted to obtain a copy for the hearing. The applicant replied that he did not think he needed the summons.
The Tribunal member also put to the applicant the proposition that the applicant could relocate to avoid the trouble. The applicant replied that he wanted to live in peace and that the south was safer than the north.
THE APPLICANT’S SUPPLEMENTARY WRITTEN SUBMISSION TO THE TRIBUNAL
Following the Tribunal hearing, on 17 September 2001, the applicant submitted 2 newspaper cuttings and a summons issued at Coimbatore on 16 April 1998, requiring the attendance of the applicant at a Magistrate’s Court on 16 June 1998. The applicant had first mentioned the summons at the hearing. In this submission the applicant indicated that further documents which had not been received from India would be submitted by 10 October 2001. No further documents were submitted to the Tribunal.
THE TRIBUNAL’S DECISION
The Tribunal referred to a body of independent information to the following effect:
·Indians enjoy freedom of movement in the country, except in certain border areas. When an application is made for a passport, a very thorough check is made of an applicant, including whether a case is pending against him or her.
·Although the Indian Constitution provides for religious freedom, enforcement of the law has been poor, and, in many areas, there is religious violence between extremist groups; there have been instances of the Police assisting the Hindu fundamentalists.
·India has an independent judiciary, with strong constitutional safeguards for the protection of human rights; however, there are still areas of the country where significant human rights abuses occur.
·There has been a rise in Islamic fundamentalism and violence and terrorist activity in Tamil Nadu in recent times, associated with the UA. In 1998, the Government of Tamil Nadu banned the organisation.
·The RSS has also been outlawed 3 times in the past for violent activities which encourage hatred between Hindus on the one hand and Muslims and Christians on the other.
The Tribunal noted that the applicant claimed that, if he returned to India, he feared that he would be killed by the RSS/BJP because of his involvement with the UA in Coimbatore; that is, because of his political opinions or political opinions which may be imputed to him, based on his religion. The Tribunal accepted that such a fear, if well-founded, was of sufficient gravity to amount to persecution. However, the Tribunal found that it did not find the applicant to be a credible witness.
The Tribunal said:
“I found the applicant to be an unimpressive witness…. I had the distinct impression that he had no hesitation in improvising and developing his claims as the situation dictated”.
The Tribunal had no confidence in his overall claims as to the limit of his involvement in the UA, or in his claims of discovery by the RSS and mistreatment at their hands as he moved around India.
The Tribunal did accept the following specific claims made by the applicant:
·That he was a resident of Coimbatore in the state of Tamil Nadu;
·That communal violence exists in India, including in Coimbatore;
·That the UA is a known Muslim extremist party with a history of terrorist and violent acts;
·That, in 1988, the applicant joined the UA as an ordinary member;
·That, although the RSS has been known for violence in the past, it is now a Hindu social/cultural organisation committed to non-violence;
·That violence broke out in Coimbatore on 14 February 1998, with rioting and bomb blasts; a special Tribunal sitting in Chennai had found that UA cadres caused many of the bomb blasts in different places in Coimbatore and the catalyst for the violence appeared to have been the killing of a police constable, on 29 November 1997, allegedly by Muslim fanatics, which led to the killing of 18 Muslims;
·That unrest has continued into 2001;
·That the summons produced by the applicant was a genuine document, or the applicant was required to attend Court on 16 June 1998 to answer charges of murder, culpable homicide, voluntary causing harm and assault or criminal force in an attempt to commit theft of property carried by a person; and
·That, in about mid February 1998, the applicant left Coimbatore, travelled to Mahim (in Bombay), then onto Delhi, and ultimately Nepal, before returning briefly to Malapuram, before going to Cochin, where he made arrangements to leave for Australia.
However, the Tribunal did not accept the following of the applicant’s claims:
·That the applicant was targeted by the RSS as far back as 1988;
·That the applicant was tortured in Mahim in February 1998;
·That the violence that erupted in Coimbatore in February 1998 was caused by the RSS.
The Tribunal found that, irrespective of whether the applicant played a part in the rioting and bombings in Coimbatore in February 1998, he was a known member of the UA and, rather than being on the RSS hit-list, he was one of the persons suspected of involvement in the rioting and bombings and was being sought by the State Police (as evidenced by the summons issued in April 1998). The Tribunal was satisfied that the applicant had fled Coimbatore, not because of RSS/BJP persecution, as he claimed, but rather to avoid apprehension by the State Police, because of suspected involvement in the UA terrorist attacks in Coimbatore in February 1998. The Tribunal found that the applicant did not come to Australia for any Convention-based reason, but rather to avoid prosecution in the State courts for crimes allegedly committed in contravention of the Indian Penal Code. The Tribunal also found that it was satisfied that, if the applicant came before the courts of Tamil Nadu, he would have a fair trial with the opportunity to properly defend himself.
CONCLUSION ON THE APPLICATION FOR JUDICIAL REVIEW
As has been seen, no real ground of review was stated in the application. Moreover, although a brief telephone message from the applicant seeking an adjournment of the hearing date on 27 May 2002 was received, the applicant did not appear at the hearing.
In my opinion, no ground to justify judicial review appears on the face of the Tribunal’s reasons. The applicant is endeavouring impermissibly, to ask the Court to review the facts and the merits.
ORDERS
In all of these circumstances, whether or not s 474(1) applies, the application must be dismissed, with costs.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.
Associate:
Dated: June 2002
Solicitor for the Applicant:
No appearance from the applicant
Counsel for the Respondent:
Mr G Kennett
Solicitor for the Respondent:
Sparke Helmore
Date of Hearing:
27 May 2002
Date of Judgment:
18 June 2002
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