NAEJ v Minister for Immigration

[2003] FMCA 334

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAEJ & ORS v MINISTER FOR IMMIGRATION [2003] FMCA 334

MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – application dismissed.

Migration Act 1958 (Cth)

Plantiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Minister for Immigration & Multicultural Affairs & Yusuf (2001) 206 CLR 323
Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Linett v McIntyre (2002) 117 FCR 189
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration & Multicultural Affairs v Prathapan (1998) 86 FCR 93
Applicant A v Minister for Immigration & Ethnic Affairs (1996- 1997) 190 CLR 225
Re Minister for Immigration & Multicultural Affairs; Ex parte ‘A’ (2001) 185 ALR 489

Applicant: NAEJ & NAEK & NAEL & NAEM

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ1386 of 2002

Delivered on: 8 July 2003

Delivered at: Sydney

Hearing Date: 8 July 2003

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. That the application of NAEJ is dismissed; that the application of NAEK is dismissed; that the application of NAEL is dismissed; and that the application of NAEM is dismissed.

2. That the Applicants pay the Respondent’s costs set in the amount of $6,000 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules provided that each Applicant is to pay one quarter share of the total costs awarded.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1386 of 2002

NAEJ & NAEK & NAEL & NAEM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Background and Tribunal decision

1. These are ex tempore reasons for judgment in relation to an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 10 September 2002 affirming a decision of a delegate of the respondent to refuse to grant the applicants protection visas.  The four applicants before the Court are unrelated but together with another person who is not a party to these proceedings, their then solicitor and migration agent sought that the Tribunal consider their applications together.  This was on the basis that they arrived in Australia as a group and their asylum applications depend on the same set of circumstances. 

2. The Tribunal gave one set of reasons for decision, handed down on 10 September 2002, in which it considered the applications of each of the five persons.  It determined that it was not satisfied that any of them was a person to whom Australia had protection obligations.  The four applicants applied to the Federal Court in a joint application on

   
   

   17 October 2002.  Counsel for the Minister indicated that he saw no difficulty with the Court dealing with the application as one application and providing one judgment as there had been one set of reasons for decision by the Tribunal.  I consider it appropriate in the interests of justice to proceed on that basis and to dispense with compliance with the requirement that each applicant file a separate application.  I have, however considered whether there are grounds for review in relation to each applicant and make orders in relation to each applicant. 

3. Each applicant had the opportunity to make written and oral submissions to the Court.  Although no written submissions were received, oral submissions were made by the applicants.  Submissions were made by one applicant on behalf of all of them.  I invited each applicant to make oral submissions should he wish to do so and have taken into account all submissions made.  None of the applicants raised grounds particular to his own case. 

4. The applicants applied for protection visas on 5 or 6 April 2001.  They were interviewed by a delegate of the respondent on 11 May 2001 (with the exception of applicant NAEM who did not attend the interview).  The delegate's decisions refusing the visas were made on 27 June 2001. 

5. The applicants made a joint application to the Tribunal for a review of the delegates decision on 4 July 2001. The Tribunal wrote to the applicants on 7 May 2002 seeking additional information under s.424 of the Migration Act 1958.  There was no reply to this request. 

6. As requested the Tribunal dealt with the applications together. It held a consolidated hearing on 24 and 25 July 2002 although it took evidence from each applicant. At the hearing the applicants were given letters pursuant to s.424A of the Act seeking their comments on information suggesting that they had come to Australia to work rather than because of any fear of persecution. The Tribunal did not receive a reply to the letters from any of the applicants or from their legal representative.

7. The applicants claimed to fear persecution for reason of their political opinion in India.  They claimed to be Christians from Kerala and to fear persecution from the political group Rastriya Swayansevak Sangh (the RSS) and from the Bharatiya Janata Party (the BJP) political party.  They claim to be members of the Democratic Youth Federation of India, (the DYFI) which is the youth wing of the Communist Party of India – Marxist, (or CPI-M).  They claim to have been attacked when performing in street dramas in support of the CPI-M and against the BJP, and that two of their associates had been killed in January and April 2001.  They claim to fear further harm from the BJP if they return to India, that the police in Kerala would not protect them and that there was nowhere they could relocate to within India. 

8. The Tribunal considered the applicants' claims in detail.  It was not satisfied that the applicants were political activists as claimed.  In making this finding it took into account a number of matters detailed in the reasons for decision.  In particular it found that the applicants did not have the level of knowledge of political developments in their area to be expected if they were as active in politics as they claimed.  The applicants had also given contradictory answers in the hearing concerning the identity of the author and recipient of a fax that had been submitted as part of the evidence.  On the evidence before it the Tribunal did accept that ‘Vincent’ had been killed in April 2001 but not that there was any link between this and the activities of the applicants although it accepted that some of them may have known Vincent in their local district, or had common church involvement with him.  However, none of the documents provided linked Vincent with street dramas or with the applicants.  Nor did the Tribunal accept that the applicants were linked in any way to the person named ‘Jayaseelam’ who was allegedly killed in January 2001 because of his involvement in their drama group.  Despite the applicants' claims to have relevant evidence supporting such claims it was not produced to the Tribunal, and the fact of the alleged murder could not be confirmed on the evidence available to the Tribunal. 

9. The Tribunal had put to the applicants’ adverse information regarding Indian press reports of their disappearance in Australia. The articles in question related to the fact that the five applicants before the Tribunal had travelled to Australia purportedly to attend a cricket academy in Adelaide but had not attended, rather having applied for protection visas after a disappearance which was referred to in the Indian newspaper articles. Apart from some brief oral comments at the hearing by two of the then applicants - one of whom is a party to these proceedings – the applicants did not respond to the s.424A letter seeking their comments on these reports which suggested, in effect, that the applicants had come to Australia to work and which made no mention of any fear of politically motivated persecution on the part of the applicants. The Tribunal expressed the view that had the travel to Australia been motivated by genuine fear of politically motivated persecution one would have expected this to be mentioned in at least some of the articles. The absence of such a mention coupled with the explicit mention of a work-related motive in such material indicated to the Tribunal that the applicants did not come to Australia in fear of persecution.

10. The Tribunal concluded that it was not satisfied that any of the applicants was a political activist or participant in a drama group under the auspices of the CPIM or the DYFI and therefore was not satisfied that they had experienced, or would in the foreseeable future, be at risk of politically motivated persecution for reasons of such participation.  Hence the Tribunal was not satisfied that any of the applicants had a genuine fear of persecution for reason of political opinion. 

11. The Tribunal went on to say that even if they did have such a fear, or a fear of religious persecution because of their Christianity as had also been suggested, the evidence satisfied the Tribunal that State protection from police in Kerala was available to the applicants.  In reaching this conclusion the Tribunal had regard to independent evidence before it in relation to the situation in Kerala. 

12. The application to this court does not identify any error in the Tribunal's decision.  None of the applicants made any written submissions to the court.  In the hearing today it was claimed that when they went to the hearing they thought that the Tribunal did not take into account what they were saying and that they had needed further time to collect documents and to translate documents into English.  It was also claimed that they were active party workers but that the Tribunal had not accepted this claim. 

Applicable law

1. In Plantiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24, the High Court considered s.474 of the Migration Act 1958 (Cth) which purports to limit the scope of review. It held that a decision involving a failure to exercise jurisdiction or an excess of the jurisdiction conferred by the Act is reviewable. In this case the applicants are self-represented. Although they have raised no grounds for review other than as mentioned in oral submissions today, I have considered the Tribunal reasons for decision and all the material before me to determine whether or not it reveals any reviewable error.

2. As to the grounds raised today, there is no evidence to support the general claim that the Tribunal did not take into account what the applicants said in the Tribunal hearing.  No particulars of this claim were provided.  The Tribunal reasons for decision contain a lengthy summary of what happened in the hearing which was conducted over two days and involved individual and collective discussions and questioning of the applicants.  There is nothing on the material before me to suggest that the Tribunal failed to take into account any aspect of any of the applicant's claims, or otherwise made a jurisdictional error in the sense considered by the High Court in Minister for Immigration & Multicultural Affairs & Yusuf (2001) 206 CLR 323 or that there was any lack of procedural fairness in the manner in which the Tribunal heard and dealt with the claims of each applicant.

3. Nor does the claim in relation to requiring further time to collect or translate unspecified documents, establish any error on the part of the Tribunal.  In particular no lack of procedural fairness is apparent on the material before the court.  The Tribunal sought further information in a letter sent to the applicants on 7 May 2002.  No response to that letter was provided.  The applicants did provide submissions in the course of the hearing and the material that had been provided in connection with the original application for protection visas was before the Tribunal and was referred to in the Tribunal reasons for decision.  Such material was provided at an early stage, the visa applications having been filed in April 2001.  Some of that material was not in English but there was clearly adequate time, if the applicants wished, to translate aspects of such material. 

4. Furthermore, in the hearing the applicants were advised of information which had come to the attention of the Tribunal, in particular, the articles in relation to the ‘missing Indian cricket players’ in Australia.  The applicants were given time to provide a response in writing to this material after the hearing.  Indeed the Tribunal indicated at the conclusion of the hearing that it would, if needs be, a little flexible if the applicants need extra time to provide documents, although having regard to the amount of time which had elapsed since they first applied to the Tribunal it did not consider that a major extension of time would be warranted.  However, no request for additional time appears to have been received by the Tribunal and no further submissions or responses to the Tribunal's letter of invitation to comment were received from the applicants or from their migration agent. 

5. No breach of s.424A or s.425 of the Act is apparent. More generally, no breach of any provision of the Act or denial of procedural fairness is apparent on the material before the Court.

6. As the respondent submitted, it is apparent that the applicants were unsuccessful because of the view the Tribunal took of the facts, on particular its finding that it was not satisfied that the applicants were political activists performing in drama groups as they claimed and that they did not have a genuine fear of persecution for reason of their political opinion. 

7. The Court cannot review the merits of the Tribunal's decision (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259). There is no error of law in the Tribunal merely making a wrong finding of fact – Abebe (see Abebe v The Commonwealth of Australia (1999) 197 CLR 510). In this case the Tribunal's findings were open to it for the reasons that it gives. The applicant’s complaints can at most concern the weight given to the evidence before it, which cannot be jurisdictional error (Linett v McIntyre (2002) 117 FCR 189 at [5], [30–35], [86-87]). Further, the Tribunal's conclusion that the applicants could have access to effective protection in Kerala was based on independent country information open to it on the material before it for the reasons it gives and is a factual matter. As McHugh J said in Chan (see Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 428):

   It is unlikely that refugee status is to be granted to a person whose account, though plausible and coherent, is inconsistent with the Tribunal's understanding of conditions in that persons country of nationality. 

8. The Tribunal properly considered and applied the law in relation to this aspect of the decision.  It is not necessary for it to find that the State can guarantee protection before it concludes that the presence of State protection means that applicants’ fears are not well founded (Minister for Immigration & Multicultural Affairs v Prathapan (1998) 86 FCR 93 at 104F.) As was stated in Applicant A v Minister for Immigration & Ethnic Affairs (1996- 1997) 190 CLR 225 at 233 per Brennan J and 257 – 8 per McHugh J, in the absence of a finding that the State is unable or unwilling to protect the applicants they cannot establish a well founded fear of persecution.

9. On the material before me I am not satisfied that there is any jurisdictional error in the Tribunal reasons or in the way in which it dealt with the applications. 

10. Finally I note that the consolidation of the application by the Tribunal was at the request of the applicants.  It has not been submitted nor is it apparent that there was any disadvantage to any of the applicants in the manner in which the Tribunal dealt with their applications. 

11. As there is no reviewable error apparent the applications must be dismissed.  The applicants argued their case before the Court on a combined basis.  There is nothing in the material before the Court to suggest that any one of them has grounds for review not available to any of the others.  Accordingly each of their applications must be dismissed. 

RECORDED   :   NOT TRANSCRIBED

1. I have heard submissions in relation to costs.  As the applicants have been wholly unsuccessful it is appropriate that they bear the respondent's costs.  I accept that because there were four applicants and there was rather a lengthy Tribunal decision with issues raised in relation to each of them there was some, additional preparation time required over and above what would be required had there been only one applicant.  I also note, however, that the effect of the proceedings being dealt with as part of one application is that the costs will be less than the amount that would have been incurred had there been four separate applications to the court.  I take this into account when considering the submissions that the applicants made in relation to their present financial situation. 

2. I consider that in this case it is appropriate that costs be set in accordance with Rule 21.02(2)(a) of the Federal Magistrates Court Rules. In the particular circumstances of this case the amount of $6,000 sought by the respondents is appropriate. There is nothing to distinguish the position of one applicant from the other in terms of their liability to bear those costs and I consider that it is appropriate to order that each of them bear a quarter of the costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  Tuesday 8 July 2003