NAJV v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1510

FEDERAL COURT OF AUSTRALIA

NAJV v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1510

NAJV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1472 of 2003

SACKVILLE J
SYDNEY
16 DECEMBER 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1472 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	NAJV APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	16 DECEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs.

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 1472 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	NAJV APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	16 DECEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE APPEAL

1. This is an appeal from a judgment of the Federal Magistrates Court given on 4 September 2003.  The learned Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (“RRT”), handed down on 28 January 2003.  The RRT had affirmed a decision of the delegate of the respondent (“the Minister”) to refuse to grant the appellant a protection visa. 

2. The appellant was unrepresented both before the Federal Magistrates Court and in this Court.  The notice of appeal does not identify any specific error of law said to have been committed by the Magistrate.  The appellant has, however, filed written submissions.  While these quote at some length from decisions of the High Court and the Full Federal Court, certain of the decisions referred to have been overtaken by the decision of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24. More importantly, it is not easy to follow why the decisions referred to by the appellant are said to be relevant to the appeal. However, it does appear that the appellant intends to contend that:

   • the RRT brought a closed mind to his claim for a protection visa and therefore was guilty of either actual bias or the circumstances created a reasonable apprehension of bias on the part of the RRT;
   • the RRT denied the appellant procedural fairness and therefore constructively failed to exercise its jurisdiction; and
   • the RRT failed to address the correct question, thereby committing a further jurisdictional error.

   THE RRT’S DECISION

3. The appellant is an Indian citizen.  He arrived in Australia on 26 August 2001.  On 6 September 2001, he lodged an application for a protection (Class XA) visa.  On 12 February 2002, the delegate refused to grant a protection visa.  The appellant thereupon applied to the RRT for a review of the delegate’s decision.  The RRT held a hearing on 20 December 2002 at which the appellant appeared.  On 28 January 2003, the RRT handed down its decision, affirming the refusal of the delegate to grant the appellant a protection visa.

4. The RRT found that the appellant had been born in Tamil Nadu and was 30 years old.  He is a Tamil Muslim by birth.  The appellant had received a tertiary education in India and speaks both Tamil and English (although he was assisted in this Court by an interpreter).  Apart from travelling to Dubai for one month in 2000, the appellant lived in India until his departure on 25 August 2001.  He left that country on a passport issued by the Indian government and travelled to Australia on a Temporary Business Visa.  The RRT also found that the appellant is a married man, with two children.

5. The RRT noted the appellant’s claim that at the age of 15 he had joined the Democratic Youth Federation of India (“DYFI”).  He said that he had been beaten many times when he had attempted to distribute leaflets informing poor people of their rights.  He claimed to have become a committee member of the DYFI and to have been present at meetings broken up by the police with tear gas and batons. 

6. According to the appellant, following his graduation from university in Trichy, he returned to his village in Tamil Nadu, where he was elected president of the local DYFI.  Because of his work, so he claimed, 25 branches of the DYFI had been opened in his area.  During one of his speeches, a fire had occurred.  The police had accused him of being responsible for the fire.  The appellant claimed that he had been detained by the police for 14 days and physically mistreated.  In May 2001, he had been charged with “conspiracy” and breach of the peace.  On this occasion, so he said, he had been held for 11 days and again physically mistreated.  He was so fed up with this maltreatment that he fled to Madras and paid bribes “through his friends” so that he could leave India safely.

7. The RRT reminded itself that applicants whose claims are plausible and credible should, unless there is good reason not to do so, be given the benefit of the doubt.  On the other hand, the RRT observed that it was not required to accept uncritically all claims made by applicants.  The RRT assessed its task as that of determining whether the appellant had a well-founded fear of persecution in India for reasons of his political opinion, in particular by reason of his involvement with the DYFI.

8. The RRT found that the appellant’s evidence concerning the organisation was “significantly inconsistent with the independent evidence”.  For example, the appellant stated that the DYFI had been established in 1942, yet the evidence showed that it had been established in 1980.  The appellant had estimated that the DYFI had a national membership of 40,000 to 50,000, but the independent evidence showed that there were actually closer to ten million members.  The appellant was also unable to describe correctly the national structure or organisation of the DYFI.

9. The RRT found that:

   “In light of the fact that the [appellant’s] knowledge of the organization of which he claims to be a member is so notably inconsistent with the independent evidence, the [RRT] cannot be satisfied that the [appellant] is a member of this group, because if he was a member, his knowledge of the group would be accurate and correct.”

10. On the evidence before it, the RRT was not satisfied that the appellant was a member of or was associated with the DYFI.  Accordingly, the RRT was not satisfied that any of the events that the appellant claimed to have occurred in India, which allegedly had arisen from his membership of the DYFI, had in fact occurred.  In particular the RRT did not accept that the appellant had been

    “·   beaten ‘many times’ by the police
      ·  detained because of [his] DYFI activities while at university
      ·  detained either in 2000 or 2001 [or]
      ·  falsely charged with any crime relating to the DYFI”.

    It followed that the RRT was not satisfied that the appellant had a well-founded fear of harm by reason of his political opinion or that he had such a fear of harm for any other Convention reason in the reasonably foreseeable future in India.

11. The RRT went on to find that even if it accepted the appellant’s claims that he faced harm in Tamil Nadu because of his involvement with the DYFI, any problems he encountered in India were “local ones centred on his home town of Adirampattinam.” 

12. If, contrary to the RRT’s findings, the appellant had been involved in the DYFI, it was satisfied that his activities were of a very local and low level nature.  The RRT was accordingly satisfied that the appellant did not have any profile which would place him at risk outside Adirampattinam.  The RRT was satisfied that there was freedom of movement within India.  It found that the appellant could live in other parts of India “out of the reach of his problems”.

13. Since the appellant was young, university educated, fluent in English and Tamil and possessed of business abilities, his employment prospects in India were positive.  He had provided no practical or sound reason as to why he would not be able to re-establish a business in an area outside Tamil Nadu.  Accordingly, the RRT was satisfied that relocation was a reasonable and feasible option for him.

    THE PRIMARY JUDGMENT

14. On the application for judicial review, the Magistrate observed that the grounds of review as set out in the application were framed in very general terms.  The appellant had filed no written submissions.  However, in his oral submissions he had taken issue with the RRT’s factual findings. 

15. Because the appellant was unrepresented, the Magistrate considered the material before her in order to determine whether any jurisdictional error was apparent.  Her Honour concluded that there was nothing in the material before her to support the appellant’s claim that the RRT had failed to follow the procedure required to be observed under the Migration Act 1958 (Cth).  The appellant had been given an opportunity to attend a hearing and had done so.  The RRT, in its reasons, had referred to each of the appellant’s claims and had addressed them.  Nor was there any thing to suggest that the RRT had not acted in good faith or had given grounds for a reasonable apprehension of bias.

16. The appellant had not identified any issue that had been ignored by the RRT.  In substance, his complaints simply related to the RRT’s refusal to accept the veracity of his claims.  This was a matter for the RRT itself.  Even if (as the appellant had suggested to the Magistrates Court) the RRT had made a factual mistake in its finding as to the date of formation of the DYFI, such a mistake was incapable of constituting a jurisdictional error. 

17. To the extent that the appellant complained of the questioning relating to his knowledge of the DYFI, her Honour held that this was merely an attempt by the RRT to draw the appellant’s attention to the critical factors on which the decision was likely to turn and to give him an opportunity to deal with those issues.  In her Honour’s view, it was appropriate for the RRT to put to the appellant questions of this kind.  By doing so, the RRT did not deny him procedural fairness.

18. The appellant’s criticisms of the RRT’s conclusions concerning the reasonableness of relocation amounted to an attempt to seek merits review that was not permissible on an application for judicial review of the RRT’s decision.  The RRT’s reasons showed that it understood and applied the law and the principles concerning relocation within a country of nationality.  It had referred to the relevant principles laid down in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, and had taken into account the circumstances of the appellant, including his age, education, ability to support himself and the general circumstances in other areas of India. The appellant had not put to the RRT any other material that it should take into account on the question of relocation, notwithstanding that the appellant was plainly aware that relocation was a relevant issue.

19. For these reasons, the Magistrate dismissed the application for judicial review.

    REASONING

20. As I have noted, the appellant’s submissions to this Court suggest that the Magistrate was incorrect in rejecting his contention that the RRT was guilty of bias or that there was a reasonable apprehension that the RRT was biased.  As the Magistrate held, there is nothing in the material to suggest other than that the RRT gave appropriate consideration to the appellant’s claims.  The fact that the RRT did not believe the appellant’s account of events, or that it put to him questions designed to test his knowledge of the DYFI, cannot establish either bias or a reasonable apprehension of bias.  There is no basis for concluding that the RRT approached its task with a closed mind or that a reasonable observer would conclude that it had done so.

21. The Magistrate was also correct to conclude that there had been no denial of procedural fairness to the appellant.  Nothing has been put on the appeal to suggest that the RRT failed to comply with the obligations imposed on it by the Migration Act, or that it had failed to give the appellant a fair opportunity to put his case.  It is clear that the RRT specifically put to the appellant the factual matters that were of concern to it.  The findings made by the RRT reflected those concerns and its assessment of the appellant’s responses.

22. The appellant’s submissions to this Court do not explain in what respect the RRT failed to ask the correct question.  Rather, the complaint appears to be that the RRT declined to accept his factual claims.  As the Magistrate explained, these complaints are not capable of constituting jurisdictional error.  The RRT directed itself to the question it was required to consider – namely whether the appellant had a well-founded fear of persecution in India by reason of his political opinion or actions.  It confirmed the rejection of his application because it was not satisfied that his claims of mistreatment were true.

23. The only additional matter raised by the appellant in his oral submissions was a complaint about the RRT’s finding that it was reasonable for him, if necessary, to relocate elsewhere in India.  This finding was merely an alternative basis for the RRT’s conclusion that the appellant did not have a well-founded fear of persecution for a Convention reason.  In any event, appellant’s complaint related only to the merits of the RRT’s factual finding.  The RRT had the appellant’s claims before it and there is nothing to suggest that it did not take them into account.

24. The appeal therefore must be dismissed, with costs.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:             16 December 2003

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	Mr A McInerney
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	16 December 2003
Date of Judgment:	16 December 2003