NAID v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCAFC 187

FEDERAL COURT OF AUSTRALIA

NAID v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCAFC 187

Migration Act 1958 (Cth) s 36(2)

NAID v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N477 of 2003

HEEREY, RD NICHOLSON and SELWAY JJ
7 AUGUST 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N447 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NAID APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	HEEREY, RD NICHOLSON and SELWAY JJ
DATE OF ORDER:	7 AUGUST 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The appeal be dismissed.

2.   The appellant 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	N447 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NAID APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	HEEREY, RD NICHOLSON and SELWAY JJ
DATE:	7 AUGUST 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. These are the reasons of the Court.  The appellant is a citizen of India, having arrived in Australia on 14 January 2001 he applied on 22 February 2001 for a protection (Class XA) visa under the provisions of the Migration Act 1958 (Cth) (‘the Act’). A delegate having refused the application, he applied for review by the Refugee Review Tribunal (‘the Tribunal’). On 26 November 2002 the Tribunal affirmed the delegate's decision. The application for review of the Tribunal’s decision made to the primary judge, Wilcox J, was dismissed.

2. The appellant's case was that he is a refugee because he has a well-founded fear of persecution within the terms set out in the Refugees Convention as amended by the Refugees Protocol. Section 36(2) of the Act provides that a criterion for a protection visa is that the appellant is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under that Convention and Protocol. It is in Art 1A(2) that the definition of refugee is found. The Tribunal found the appellant did not satisfy the definition because his claims said to ground a well-founded fear of persecution could not be believed. His claims were based on his political opinion or membership of a particular social group.

3. His claim to have joined the Radical Students Union (‘the RSU’) following the completion of high school studies in Hyderabad and to have continued as an active member was disbelieved.  This was because of the appellant's evidence that he had moved to Mumbai from 1987 to 1991 and only visited Hyderabad on three or four occasions during that period.  His claim to having been President of the college wing of the RSU when he started college in Hyderabad in 1991 was disbelieved because of his lack of knowledge of the structure, activities and profile of the RSU.  Claims to have suffered harm from police were not accepted on the basis that such conduct was not shown to be Convention related.  His further claim to have been involved in the activities of the Peoples War Group after 1994 were not accepted because of the vague and generalised nature of the appellant's evidence.  An additional claim that he had been detained for questioning by police was also disbelieved.

4. Three documents were submitted by the appellant to the Tribunal.  One contained an allegation that the appellant had been seen fleeing the scene of the bombing murder of a prominent politician but that was not found to be genuine given patent date errors in it.  Two other documents were not accepted due to further discrepancies in dates.  Before us, the sole argument of the appellant was that he had requested the Tribunal to investigate the documents but it had failed to do so.  He has not, before us, given any reasons to show that there was any jurisdictional error in the way the Tribunal approached the issue of the documents, that is, that there was evidence before it upon which it was not entitled to reach the view of the documents which it did.  The result was that the decision of the Tribunal turned on issues of credibility, those issues lying only within the jurisdiction of the Tribunal.

5. When the application for review came before the primary judge he dismissed it because it was based on findings of fact which were solely within the province of the Tribunal and did not involve any point of law or procedure.

6. The grounds stated in the notice of appeal arising today seek to re-agitate issues of fact relating to the documents which, as we have said, were found by the Tribunal not to be genuine.  No ground is given for doubting the entitlement of the Tribunal to have reached those conclusions in that respect.  In any event, it is not open to this appellate court (any more than it was to the primary judge) to make findings of fact concerning those documents.  Nothing else has been raised by the appellant to ground any suggestion of jurisdictional error in the decision made by the Tribunal or any error in the reasons of the primary judge.

7. For those reasons we consider that as a matter of law the appeal must be dismissed with costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Heerey, RD Nicholson and Selway.

Associate:

Dated:             15 August 2003

The Appellant represented himself
Counsel for the Respondent:	Mr S Lloyd
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	7 August 2003
Date of Judgment:	7 August 2003