NAHT v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 425

FEDERAL COURT OF AUSTRALIA

NAHT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 425

NAHT v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 15 of 2003

BRANSON J
8 MAY 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 15 OF 2003

BETWEEN:	NAHT APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	8 MAY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT the application be dismissed.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 15 OF 2003

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

JUDGE:	BRANSON J
DATE:	8 MAY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant, a citizen of India, arrived in Australia on 9 April 2000 on a temporary business visa.  On 4 May 2000 he lodged an application for a protection visa.  This application was refused by a delegate of the respondent on 12 May 2000.  The applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the decision of the delegate.  On 11 December 2002 the Tribunal handed down a decision whereby it affirmed the decision of the delegate.  The applicant has applied to the Court for judicial review of the decision of the Tribunal.

   Claims

2. The Tribunal in its written reasons for decision summarised the applicant’s claims in the following way:

   ‘… He had a history of political activity since student days, opposing such issues as the oppressive behaviour by landlords and employers, official corruption and police brutality.  As a result of this activity he had been arrested many times between 1979 and 2000, been detained for long periods and tortured.  He had also lost his employment because of his Naxalite political activities.  He was harassed and had been forced to leave home and move from hiding place to hiding place following police action against him about a banned book.  None of his arrests had resulted in a trial, a conviction or an acquittal.  He had given details of the charges.  All were still pending.  His action for wrongful dismissal has not proceeded because of bribes to court officials.  As a result of the recent Ravindran incident, he was in fear of his life.  Because of these experiences he had left India, requiring assistance from airport officials to obtain exit clearances and from other contacts, to obtain his visa.  He feared that, if he returned to India he would be imprisoned and perhaps killed. … .’

3. Before the Tribunal the applicant confirmed that the above was a fair summary of his claims.  He did not suggest otherwise in his submissions to the Court.

   FINDINGS OF THE TRIBUNAL

4. The Tribunal gave consideration to whether the applicant had a well‑founded fear of persecution in India for reason of membership of a particular social group, namely his caste.  It also gave consideration to whether the applicant, who it accepted had been dismissed from a position of employment, had thereby suffered harm sufficiently serious to be characterised as persecution.  Before the Court the applicant disowned any claim to fear persecution by reason of his caste or to fear persecution on economic grounds.  These aspects of the Tribunal’s reasons for decision therefore need not be considered further.

5. The Tribunal was satisfied that the applicant has a history of involvement with the Naxalite movement, a communist movement which advocates armed revolution.  It found that his involvement with the movement started when he was a university student in 1979.  The Tribunal did not find credible his denial that he had been involved in Naxalite terrorist activities.

6. The Tribunal did not accept the applicant’s claim that he had been arrested many times between 1979 and 2000.  It concluded:

   ‘The consistent inability of the applicant top [sic] provide any corroborative evidence of his asserted arrests, charges, detention and court appearances, save one, left the Tribunal unable to be satisfied with the truth of those claims.’

   The Tribunal had earlier stated that:

   ‘If he has experienced a number of arrests, charges and periods of detention, then those were the result of his involvement with a proscribed terrorist group in its criminal activity.’

   However, the Tribunal’s reasons for decision make it clear that it was not satisfied that the claims of the applicant concerning his many arrests were true.

7. The Tribunal was not satisfied that, as the applicant had claimed, the Q Branch police visited the applicant’s home, beat up his wife and took copies of a pamphlet in which extracts of a banned book had been published.  The Tribunal accepted country information which indicated that the book in question was controversial, but not banned, and had been freely on sale in India for many years.

8. The Tribunal did not accept that the applicant has a real fear of persecution as a result of his association with Ravindran, a leader of the applicant’s political movement who was shot dead by police in January 2000.  The Tribunal was not satisfied that the applicant was still active in the Naxalite movement in January 2000.  Even if he had been, the Tribunal did not consider that his fear had a rational basis.  It took the view that Ravindran was a notorious terrorist who had been on the police wanted list for many years while the applicant had been able to pursue his activities freely.  Had the police wanted to kill him, the Tribunal reasoned, they would have had ample opportunity to do so.  Further, the Tribunal placed weight on the fact that the applicant had applied for and received his business visa before the date of Ravindran’s death.  It considered this fact to be inconsistent with the death of Ravindran being a factor in the applicant’s initial decision to leave India.

9. Finally, the Tribunal noted that the applicant’s ability to travel to Singapore in 1995 and to Singapore and Malaysia in 1998 and to renew his passport in 1999, all apparently without difficulty, indicated that he was not of concern to the Indian authorities.

10. The Tribunal concluded that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

    CONTENTIONS OF THE APPLICANT

11. The applicant, who appeared without legal representation but with the assistance of an interpreter, contended that certain correspondence showed that the Tribunal had approached his application in a biased manner.  It is necessary therefore to give consideration to a letter which the Tribunal sent to the applicant and to an internal Tribunal memorandum headed ‘RRT Research Response’.

12. At the Tribunal hearing the applicant indicated that he had no objection to official services such as the Australian mission in New Delhi being requested to confirm information provided by him as to legal action taken against him.  It appears that the Tribunal caused such a request to be made.

13. By letter dated 31 July 2002 the Tribunal informed the applicant, amongst other things, that:

    ‘… inquiries with the Australian High Commission in India have been unable to confirm any of the Court appearances mentioned in your application for protection or at your hearing by the Tribunal on 26 February 2002.’

14. Approximately three weeks later the applicant made a written complaint to the Tribunal that, in effect, by reason of its inquiries with the Australian High Commission in India, the applicant’s father had been detained and tortured to divulge the applicant’s whereabouts in Australia with the result that he had died.  It appears that, as a result of receiving the applicant’s complaint, the Tribunal sought information concerning any inquiries that had been made in India concerning the applicant.  It received advice from the Department of Foreign Affairs and Trade that ‘representatives of both DIMIA and DFAT in New Delhi have confirmed that no inquiries were made in relation to RRT request IND 15038.’  Documentation before the Court suggests that the original research request may have been assigned the number ‘IND 15383’ and not the number ‘IND 15038’.  An alternative possibility is that an error was at some time made in the transcription of the research request number.  Neither party drew the Court’s attention to the apparent inconsistency between the two research request numbers.  For the reasons set out below the inconsistency would seem to have no present relevance.

15. It is understandable that the applicant assumed from the letter dated 31 July 2002 that the Tribunal had caused inquiries to be made in India concerning him.  However, I accept the submissions made by Mr Kennett, counsel for the respondent, that it is likely that the Tribunal’s relevant purpose in sending the letter was to ensure that the applicant was not under any misapprehension that the Tribunal had obtained from India information favourable to his case.  Its later inquiries were, it seems, provoked by the applicant’s suggestion that the Tribunal’s actions had resulted in the arrest, torture and death of his father.

16. Importantly the reasons for decision of the Tribunal do not suggest that the Tribunal attached any weight to the failure of its own inquiries to provide support for the applicant’s claims.  The Tribunal was not, in my view, under any obligation in the circumstances to press for inquiries to be made in India concerning the applicant’s legal history there.  Properly understood there is, in my view, no inconsistency between the Tribunal’s letter dated 31 July 2002 and the later advice that no inquiries concerning the applicant had been made in India.  I do not consider that the correspondence on which the applicant relies demonstrates any intention in the Tribunal to mislead him or otherwise to act inconsistently with his interests.  The correspondence on which the applicant relies does not demonstrate bias, or other legal error, on the part of the Tribunal.

17. The applicant contended that, as the Tribunal has in the past accepted claims of entitlement to a protection visa made by individuals who have come to Australia using passports issued in their true names, the Tribunal adopted a double standard in rejecting the applicant’s claim.  Nothing in the Tribunal’s reasons for decision, nor any other factors brought to the attention of the Court, suggests that the Tribunal sought to do other than evaluate the claims of the applicant on their merits.  The fact that Tribunals differently constituted may in other cases have adopted different views of the likelihood of a person of interest to the Indian authorities being able to depart India from an international airport does not detract from this conclusion.  The applicant’s contention must be rejected.

18. The applicant complained of two aspects of the Tribunal’s reasoning process as it touched on his claim to have been arrested on a number of occasions.  First, he alleged that there was no evidence before the Tribunal to suggest that he had been involved in criminal activities yet the Tribunal concluded that if he had been arrested on a number of occasions it would have been because of his involvement with a proscribed terrorist group in its terrorist activities.  Secondly, he asserted that it was not possible for him, a person who feared for his life when he left his home country, to provide corroborative evidence of all of his arrests, charges, detention and court appearances.

19. It is not strictly true that there was no evidence before the Tribunal to suggest that the applicant had been involved in criminal activity.  The appellant had claimed involvement with a movement which used violence as a political tool.  Further he had made a statement that on his marriage he decided to be no longer involved in violence.  More importantly, the Tribunal in fact proceeded on the basis that the applicant had not been arrested as he claimed.  It was, in effect, a secondary conclusion of the Tribunal, presumably founded on the possibility that it might be wrong about the applicant’s claim to have been arrested a number of times, that if he had been so arrested it was by reason of the enforcement by the authorities of criminal laws of general application.  There was no error involved in the Tribunal’s reasoning process in this regard.

20. As to the applicant’s claim of being unable to provide corroborative evidence of his asserted arrests, it is clear that the Tribunal did not criticise the applicant for not fleeing India with evidence of his arrests in his possession.  Rather, as is noted in the Tribunal’s reasons for decision, the Tribunal on more than one occasion extended the date by which it required the applicant to produce evidence which he had claimed was available concerning his arrests.  The documents before the Court reveal that as early as 12 February 2002 the applicant indicated to the Tribunal that if he were given time he would be able to produce evidence which proved the accuracy of his claims.  He did not do so.  This was a factor on which the Tribunal was entitled to place weight in deciding whether or not it found the claims of the applicant to be credible claims.

21. Finally, the applicant complained, in effect, of certain aspects of the Tribunal’s reasoning process.  For example, he claimed that books are not officially banned in India and, as I understood him, that the Tribunal gave undue weight to its finding that the book from which the applicant claimed to have published extracts was not banned in India.  The weight to be attributed to evidence or other material before the Tribunal, and the inferences to be drawn from such material, are matters for the Tribunal.  I am not satisfied that any reviewable error has been identified in the reasoning process adopted by the Tribunal.  It is not relevant that another decision maker, faced with the same material, might have reached a different conclusion.

    CONCLUSION

22. I can identify no basis upon which the decision of the Tribunal is open to review.  The application will be dismissed.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:            8 May 2003

Counsel for the Applicant:	The applicant appeared in person.
Counsel for the Respondent:	Mr G Kennett
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	1 May 2003
Date of Judgment:	8 May 2003