NAJV v Minister for Immigration

[2003] FMCA 383

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAJV v MINISTER FOR IMMIGRATION [2003] FMCA 383

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. 

Migration Act 1958 (Cth)

Craig v South Australia [1995] 184 CLR 163
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1
Kioa v West (1985) 159 CLR 550
Re Minister; Ex parte Durairajasingham (2000) 168 ALR 467
Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437

Applicant: NAJV

Respondent: THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ521 of 2003

Delivered on: 4 September 2003

Delivered at: Sydney

Hearing Date: 4 September 2003

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr JD Smith

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the application is dismissed.

2. That the Applicant pay the Respondent’s costs set in the amount of $3,500 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ521 of 2003

NAJV

Applicant

And

THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal handed down on 28 January 2003.  The Tribunal affirmed a decision of a delegate of the respondent to refuse to grant the applicant a protection visa.  The applicant is a citizen of India who arrived in Australia on 28 August 2001.  On 6 September 2001 he lodged an application for a protection visa claiming that he feared persecution on the grounds of his support for and involvement in the Democratic Youth Federation of India (DYFI).  On 12 February 2002 a delegate of the respondent refused to grant the applicant a protection visa.  The applicant applied to the Tribunal for a review of that decision. 

2. The Tribunal did not accept the applicant's claims.  In particular, it did not accept that he had had any involvement with the DYFI, that he had been beaten many times by the police, detained because of his DYFI activities while at university, detained either at 2000 or 2001, or falsely charged with any crime relating to the DYFI.  The Tribunal did not believe that the applicant was a member of or had even been associated with the DYFI.  Despite his claim of longstanding membership of the DYFI his evidence about the organisation, in particular its date of establishment, place of the inaugural meeting, number of members and national structure and organisation, was significantly inconsistent with cited independent evidence including the website of the DYFI.  The Tribunal also found that even if it did accept the applicant's claims, it would be reasonable to expect him to relocate within India and that if he did so he would not face persecution, based on independent evidence cited and the applicant’s own evidence about his circumstances. 

3. The grounds for review of the Tribunal decision as set out in the application filed on 24 February 2003 are:

   (1)That the decision-maker failed to follow the procedure required by the Act to be observed and did not act in good faith in making the decision.  The decision-maker did not endeavour to exercise its functions and powers to review the application;

   (2)The decision-maker identified a wrong issue, asked himself  a wrong question, ignored relevant materials, relied on irrelevant material, made erroneous findings and reached a mistaken conclusion, thereby committing an error of law constituting jurisdictional error; and

   (3)The decision-maker exceeded his purported exercise of power in a way thereby committing an error of law thereby a constructive failure to exceed jurisdiction along with procedural fairness.

4. No written submissions were filed by the applicant.  In oral submissions he took issue with the Tribunal's rejection of his credibility based on his lack of knowledge about the DYFI.  In particular he claimed that his organisation had started in 1942 but that the Tribunal had considered the date of 1980 as the start of the organisation whereas this was the date his organisation joined the Communist party.  The applicant also took issue with the Tribunal's approach in relation to relocation within India, suggesting for various reasons that it would not be viable for him in practical terms to relocate elsewhere in India.  Finally, he took issue with the Tribunal's reliance on particular independent country information and decisions of the Federal Court on the basis that the material relied upon was obsolete and that the situation in India was different to the understanding of the Tribunal and as represented in the material considered by the Tribunal. 

5. The applicant has not addressed, as such, the grounds that he relied upon in his application except in very general terms.  However, as he is self-represented I have considered the material before me and whether any jurisdictional error is apparent. 

6. Dealing first with the grounds set out in the application. There is nothing in the material before me to support the applicant's claim that the Tribunal failed to follow the procedure that was required to be observed under the Migration Act 1958. The applicant had an opportunity to, and did, attend a hearing. In the statement of reasons prepared under section 430 of the Act the Tribunal referred to each of the applicant's claims including those made in the application for the visa and also those made to the Tribunal. There was nothing to suggest that it did not follow any prescribed procedures.

7. The applicant also alleges that the decision-maker did not act in good faith.  There is nothing in the material before me to support this claim, nor is there anything to suggest any bias or apprehended bias if that should be encompassed in what is being suggested. 

8. As to the suggestion that the decision-maker erred by identifying the wrong issue, asking himself a wrong question and ignoring relevant materials etc.. this appears to be an allegation that there was a jurisdictional error in the sense considered in the decisions of Craig v South Australia [1995] 184 CLR 163 and Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1. No particular issue was identified by the applicant, except in his oral submissions, to which I will return. Putting to one side those submissions, there is nothing else in the material before me, not identified by the applicant that in any way suggests there is a jurisdictional error in such a sense. Nor is there anything to support the claim that the Tribunal exceeded its jurisdiction.

9. The applicant asserts generally that the question of procedural fairness is relevant.  It is the case that the Tribunal put to the applicant questions in relation to the DYFI and relied on independent country information contrary to what had been submitted by the applicant.  However in the circumstances of this case I am satisfied that the applicant had had his attention drawn to the critical factors on which the decision was likely to turn so that he had an opportunity to deal with those issues (see Kioa v West (1985) 159 CLR 550). His claim, as expressed in his protection visa application, was based on his membership of and activities for the DYFI and not, for example, on membership of some other youth organisation which may have formed part of the federation of the DYFI. Clearly then, it was appropriate for the Tribunal to put to him questions in relation to the DYFI and his claimed activities. He was put on notice of the significant issues and no denial of procedural fairness is apparent. There is no suggestion that the Tribunal failed to have regard to any material submitted by him.

10. As to the particular issues raised in the oral submissions, I have touched to some extent on the applicant's complaint about the Tribunal conclusions in relation to his credibility.  The Tribunal's conclusions in relation to credibility are a matter for it par excellence (see Re Minister; Ex parte Durairajasingham (2000) 168 ALR 467). Its conclusions were open to it on the material before it and it gave reasons for those conclusions. In particular it found that the evidence that the applicant gave in relation to the DYFI was significantly inconsistent with independent evidence in relation not only to the founding date of the DYFI but also the number of members in India and the national structure or organisation of DYFI. The Tribunal was not satisfied of the veracity of the applicant's claims. That was a matter for the Tribunal. The applicant suggests that the Tribunal made a factual error in relation to the date of formation of ‘his’ organisation. If it did so (and this has not been established) this does not, in this instance, constitute a jurisdictional error. Merits review is not available. The Tribunal properly stated the law and considered the elements of the applicant’s claims. Those claims related to membership of the DYFI – not some other organisation – and the Tribunal based its decision on credibility on the applicants’ lack of knowledge of the DYFI.

11. The Tribunal also considered that if it had accepted the claims and evidence, it would nonetheless be satisfied that it was reasonable for the applicant to relocate within India.  The applicant takes issue with the Tribunal's conclusions in this regard referring to a number of factual matters.  Insofar as his attack seeks merits review that is not available.  This is not a re-hearing.  It is apparent from the Tribunal reasons for decision that it properly understood and applied the law and the principles in relation to relocation within a country of nationality.  It considered (in accordance with the principles laid down by Black CJ in Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437) the possibility of relocation taking into account the circumstances of the applicant including his age, education, ability to support himself in Australia, his employment in India and the general circumstances in other states of India.

12. It is in this context that the applicant also took issue with the Tribunal's reliance on what he described as obsolete material.  In relation to his complaints I note first, that he referred to country information and the Randhawa decision listed on page 34 of the bundle of relevant documents before the Court.  Such information was, however, material that was taken into account by the original decision-maker.  Copies of that information were provided to him.  While Randhawa is a 1994 decision the principles from that case remain relevant and were also properly applied by the Tribunal. 

13. The Tribunal refers in its decision to the material on which it relied in relation to relocation.  There is no suggestion that the applicant put any other material before the Tribunal which was not taken into account, despite the fact that it is clear that he was aware, from the submission that he made to the Tribunal, that relocation was a relevant consideration.  The Tribunal did take into account the claims that he made in that respect.  Further, insofar as the applicant refers to the present situation in India this is not material in determining whether or not there was a jurisdictional error in the Tribunal decision.

14. The submissions made by the applicant and the material before me do not establish that there is any jurisdictional error.  Nor in the circumstances of this case am I satisfied that there has been any denial of procedural fairness.  Accordingly, I have no alternative but to dismiss the application.  The Minister seeks costs and I will hear submissions in that regard. 

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been wholly unsuccessful and there is nothing in the case to suggest that the normal principle that the unsuccessful party should bear the costs should not apply. The applicant claims that an amount of $4,000 would be excessive and punitive and refers to some financial difficulties. His impecuniosity may be something to be taken into account by the Minister in determining whether to seek to pursue recovery of the costs (which would in any event be a debt due to the Commonwealth, payable should he leave and then seek to return to Australia). Taking into account the nature of this and other similar cases, I consider that an appropriate amount of costs in this matter is the sum of $3,500 and that I should set costs in that amount in accordance with the Federal Magistrates Court Rules.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  4 September 2003