NALR v Minister for Immigration and Multicultural and Indigenous Affairs
[2003] FCA 1318
•17 NOVEMBER 2003
FEDERAL COURT OF AUSTRALIA
NALR v Minister for Immigration and Multicultural and Indigenous Affairs
[2003] FCA 1318
MIGRATION – no principle.
NALR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1520 OF 2003
CONTI J
17 NOVEMBER 2003
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1520 OF 2003
BETWEEN:
NALR
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
CONTI J
DATE OF ORDER:
17 NOVEMBER 2003
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. Appeal dismissed.
2. Appellant to 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 1520 OF 2003
BETWEEN:
NALR
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
CONTI J
DATE:
17 NOVEMBER 2003
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal from the decision of Driver FM given on 19 September 2003 which led to the order of his Honour of dismissal of an application for review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the respondent Minister to refuse to grant the appellant a protection visa.
The appellant appeared in person and was assisted by an interpreter. The purported ground of appeal set out in his Notice of Appeal filed on 9 October 2003 was in the following terms:
‘His Honour has failed in finding denial of natural justice and procedural fairness occurred in the decision of the RRT.’
On the previous occasion when the appellant appeared before me, I informed him that the above ground of appeal was inadequate and ineffective. No attempt has been subsequently made to amend that ground of appeal by for instance indicating the basis upon which any such denial of natural justice and procedural fairness was being advanced. The appellant was unable to indicate today any such basis.
Written submissions were provided to the Court by Counsel for the respondent, and also to the appellant. The substance of those submissions are repeated below. In my opinion, those submissions were wholly correct:
‘The Appellant applied for a visa on 19 December 2001. He was interviewed by a delegate of the Respondent on 8 February 2002. The delegate’s decision refusing the visa was made on 15 May 2002. The Appellant applied to the Tribunal for review on 28 May 2002. The Tribunal held a hearing on 18 February 2003 and handed down its decision on 14 March 2003.
The Appellant claimed to fear persecution for reason of his political opinion in India. He claimed to be a member of the Congress-I Party in Andhra Pradesh, and to fear persecution from members of the rival Shiv Sena, RRS and BNP parties and associated mafia groups. He claimed to have been kidnapped in 1993, to have had money demanded from him in 1998 and to have been assaulted in May 2000. He claimed that he will be killed if he does not give money.
The Tribunal found that the Appellant was not a credible witness. It carefully examined the Appellant’s claims and evidence and noted a number of contradictions, changes and implausibilities in them. The Tribunal rejected all the Appellant’s substantive claims, and found a number had been fabricated in an effort to create a refugee profile. The Tribunal concluded that the Appellant did not have any genuine fear of harm in India. Further, the Tribunal found that even if the Appellant’s claims were true, it was reasonable for him to relocate from Andhra Pradesh to one of the many states in India where the Congress Party are in power.
It is apparent that the Appellant was unsuccessful because of the view the Tribunal took of the facts, in particular its strong finding that the Appellant was an unreliable witness and his claims fabricated. Such findings are matters of fact for the Tribunal par excellence: Re Minister for Immigrates and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]. So long as the Tribunal’s credibility findings were open to it, no error is demonstrated in such conclusions: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 (FC) at 558-559; W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and RD Nicholson JJ. The Tribunal’s findings were open for the reasons it gave, in particular the many changes and contradictions in the Appellant’s claim detailed by the Tribunal, and his voluntary return to India in 2001. Further, the Tribunal’s conclusion that even if the Appellant’s claims were true it was reasonable for him to relocate within India, correctly applying Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 (FC), is also a finding of fact that independently necessitated the failure of the Appellant’s claim.
Before Driver FM the Appellant did not identify any legal error in the Tribunal’s decision, and appears to have sought merits review: [4-6]. However the Court cannot review the merits of the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137]. Accordingly His Honour correctly dismissed the application.
The Notice of Appeal does not properly particularise any error by His Honour, and raises an unparticularised allegation of denial of procedural fairness that was not put to His Honour.
The Appeal should be dismissed with costs.’
I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate:
Dated: 17 November 2003
Applicant: In person Counsel for the Respondent: T Reilly Solicitor for the Respondent: Sparke Helmore Date of Hearing: 17 November 2003 Date of Judgment: 17 November 2003
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