NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
MIGRATION – visa – protection visa – reliance on ‘country information’ – whether Tribunal can use such information in assessing credit – whether such information the sole basis for Tribunal’s findings as to credit – Tribunal’s duty to look at reasonably foreseeable future – whether subsequent developments can be relied on to vitiate Tribunal’s decision – whether denial of procedural fairness – whether sufficient opportunity to deal with country information – whether Tribunal biased
NAHI, NAHJ AND NAHK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 595 of 2003
GRAY, TAMBERLIN AND LANDER JJ 2 FEBRUARY 2004 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 595 of 2003
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
NAHI FIRST APPELLANT
NAHJ SECOND APPELLANT
NAHK THIRD APPELLANT
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:
GRAY, TAMBERLIN AND LANDER JJ
DATE OF ORDER:
2 FEBRUARY 2004
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellants pay the respondent’s costs of the appeal.
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 595 of 2003
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
NAHI FIRST APPELLANT
NAHJ SECOND APPELLANT
NAHK THIRD APPELLANT
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:
GRAY, TAMBERLIN AND LANDER JJ
DATE:
2 FEBRUARY 2004
PLACE:
SYDNEY
REASONS FOR JUDGMENT
THE COURT:
The nature of the proceeding
This appeal is from the judgment of Stone J in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 372. Her Honour dismissed an application, pursuant to s 39B of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’), for writs of certiorari, prohibition and mandamus, directed to the Refugee Review Tribunal (‘the Tribunal’), in respect of its decision to refuse to grant protection visas to the three appellants.
In its decision, made on 13 November 2002, the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Multicultural and Indigenous Affairs) (in both cases, ‘the Minister’), refusing to grant protection visas. As its written reasons…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Case
[2004] FCAFC 10
Decision Date
CaseChat Overview and Summary
The case of NAHI v Minister for Immigration & Multicultural & Indigenous Affairs involved a decision by the Tribunal affirming the Minister’s refusal to grant protection visas to the appellants. The appellants, who are residents of Sri Lanka, sought protection visas on the basis that the first appellant would face persecution if returned to his homeland due to his race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal, however, found the appellants’ claims unsubstantiated and dismissed their application for protection visas.
The primary legal issue before the court was whether the first appellant met the criteria for a protection visa under section 36(2) of the Migration Act 1958, which requires a well-founded fear of persecution on the grounds outlined in the Convention. The court had to assess the credibility of the appellants’ claims and determine whether they satisfied the necessary conditions for refugee status. The Tribunal conducted a detailed examination of the appellants' accounts and evidence, ultimately finding the first appellant’s claims to be lacking in credibility.
In its decision, the Tribunal provided extensive reasons for its findings, highlighting inconsistencies and implausibilities in the appellants’ accounts. The Tribunal concluded that the first appellant’s claims of persecution were not credible and that there was no basis for a finding that he would face persecution if returned to Sri Lanka. Consequently, the Tribunal upheld the Minister’s decision to refuse the protection visas for all three appellants. The court held that the appellants’ claims did not meet the required standard under the Convention, and thus the appeal was dismissed.
The final orders of the court included dismissing the appeal and ordering the appellants to pay the respondent’s costs of the appeal. This decision underscored the necessity for claimants to provide credible and substantiated evidence to meet the high threshold required for refugee status under Australian law.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellants pay the respondent’s costs of the appeal.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GRAY, TAMBERLIN AND LANDER JJ
In its decision, made on 13 November 2002, the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Multicultural and Indigenous Affairs) (in both cases, ‘the Minister’), refusing to grant protection visas. As its written reasons for decision show, the Tribunal found that the first appellant, who is the husband of the second appellant and the father of the third appellant, did not have a well-founded fear of persecution, if he should return to his homeland of Sri Lanka, for reasons of race, religion, nationality, membership of a particular social group or political opinion. The Tribunal therefore found that the first appellant did not satisfy the criterion in s 36(2) of the Migration Act 1958 (Cth) (‘the Migration Act’), because he was not a person to whom Australia had protection obligations under the Refugees Convention (the Convention relating to the Status of Refugees done at Geneva on 28 July 1951) or the Refugees Protocol (the Protocol relating to the Status of Refugees done at New York on 31 January 1967) (together called the ‘Convention’). Because the second and third appellants’ claims to protection visas depended upon the success of the first appellant’s claim, they also failed. The Tribunal’s reasons for decision In its written reasons for decision, the Tribunal set out at considerable length the first appellant’s account of his life in Sri Lanka, his departures from and returns to that country, and his claims as to what had been done to him by the Sri Lankan authorities, allegedly because of his membership of the Tamil race and his connections, real or imputed, with the Liberation Tigers of Tamil Eelam (‘LTTE’). It is unnecessary to detail the first appellant’s claims. The Tribunal made findings adverse to the credibility of the first appellant. In the following passage in its reasons for decision, the Tribunal rejected each of his claims:‘Specifically, having regard to the view I have formed of the [first appellant’s] credibility, I do not accept that the LTTE stole goods such as cement and generators from the site under the [first appellant’s] control between 1984 and 1993. I do not accept that the [first appellant] was ever the subject of a criminal investigation, either as a result of these claimed thefts or because the LTTE compelled him to sign blank pieces of paper which the LTTE used to have goods such as cement and generators delivered to them. I do not accept that the [first appellant] was abducted by the LTTE towards the end of 1992 and compelled to sign blank pieces of paper. I do not accept that the [first appellant] would not have been arrested if his involvement in these thefts from the corporation had come to light, as he says, nor that he would have been allowed to leave the country in these circumstances. Equally, I do not accept that the [first appellant] would have travelled in and out of Sri Lanka on no less than three occasions after this, in 1995, 1997 and 1999, if the threat of a criminal investigation had been hanging over him as he claims.Having regard to the view I have formed of the [first appellant’s] credibility, I do not accept his account of his two arrests in Colombo in February and March 1999. For reasons given above I do not accept that the [first appellant] would have been of any greater interest to the police by reason of his relationship with his eldest brother, who he says was wrongfully arrested and imprisoned for three years in 1984, than his second eldest brother, who he says at all material times held a good position in the Department of Health in Batticaloa. Moreover, although the [first appellant] claims that he was told to leave the country by the Muslim police officer who he claims to have bribed to obtain his release in February 1999, he remained in Sri Lanka with his wife and child until April 1999. I consider that the [first appellant’s] entire account of the problems he claims to have experienced in Sri Lanka is a fabrication. I do not accept that the [first appellant] was ever arrested by the authorities in Sri Lanka nor that he has ever been of any interest to the Sri Lankan authorities. I likewise do not accept that he has ever been of any interest to the LTTE. I do not accept that he ever assisted the LTTE nor that the LTTE believes that he betrayed the LTTE.’