NAMO v Minister for Immigration
[2004] FMCA 471
•20 July 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAMO v MINISTER FOR IMMIGRATION | [2004] FMCA 471 |
| MIGRATION – Review of decision of RRT – where applicant’s complaints are not supported by evidence that the conduct he complains of took place. |
Federal Court Rules 1979 , O 54B
Migration Act 1958 (Cth), s.422B
Federal Magistrates Court Rules 2001, P 21 r 21.02(2)(a)
NARE v Minister for Immigration [2003] FCA 554
| Applicant: | NAMO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 1010 of 2003 |
| Delivered on: | 20 July 2004 |
| Delivered at: | Sydney |
| Hearing date: | 20 July 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Solicitor for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Tim Reilly |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Application dismissed.
Applicant to pay respondent’s costs in the sum of $4,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 1010 of 2003
| NAMO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India. He arrived in Australia on 22 March 2002. On 10 April 2002 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 28 April 2002 a delegate of the Minister refused to grant a protection visa and on 5 July 2002 the applicant applied for a review of that decision from the Refugee Review Tribunal. The Tribunal arranged a hearing and the applicant gave oral evidence to it on 24 January 2003. On 3 March 2003 the Tribunal determined to affirm the decision not to grant a protection visa and it handed down that decision on 25 March 2003. On 31 March 2003 the applicant sought review of that decision in this court.
The substantive ground of the applicant's complaint against the conduct of the Tribunal was that he had made a request for a date to submit explanation and material in support of his claim in reply to adverse material relied upon by the Tribunal. He stated that the Tribunal refused to grant a date as requested and then made its decision. There are other matters referred to in the application but it appears to me that they are either complaints that the Tribunal did not find in favour of the applicant, a repetition of the complaint about the materials or an unparticularised claim that the Tribunal was not bona fide. This last claim requires to be particularised pursuant to Order 54B of the Federal Court Rules and has not been so particularised.
The grounds upon which the applicant seeks the protection of Australia are that he is a person to whom this country owes protection obligations pursuant to the Refugees Convention and the Refugees Protocol because he has a well founded fear of being persecuted for reasons of political opinion in his home country of India. This fear arises out of the applicant's association with a fire that occurred in a Dalits colony in his home town in August 2001. Apparently the applicant was nearby at the time and was noted by the police to have been in the area. He is a Muslim and Muslims were blamed for the occurrence. The police took away several people including his brother-in-law. The applicant feared that the police would wish to interview him about the incident and that he would be imprisoned and placed in a special facility for terrorists where he would be tortured and would suffer as a result of the authority's failure to treat his diabetes.
At [CB 178] in its findings and reasons the Tribunal notes that it asked the applicant several times whether he had any other claims than those raised at the hearing flowing from the incident in the Dalits colony. The applicant had answered in the negative and the Tribunal proceeded on the basis that this was the only claim. Today, before me, the applicant said that his only problem was with the state police which would seem to indicate that he accepts this limitation upon his purported well founded fear. The applicant had said that his wife had been arrested and tortured but this was not accepted by the Tribunal for reasons which are given at [CB 179] and appear to me to be logically based upon the evidence.
The Tribunal did not find that the applicant was not present at the fire but concluded that if the police did seek him concerning it it was because he was a witness. The Tribunal did not accept that the applicant's fears that he would be detained and tortured were well founded when it took into consideration the story told to it by the applicant and the independent country information about the legal system in India, the political situation in his home state and generally.
When I asked the applicant to explain to me why he believed the Tribunal had erred in law in the manner in which it had come to its conclusions he told me that he did not have any trouble other than in his home state, that his wife has had to move from the two houses which he owned to lodgings in Madras and that because he had no sons he could not expect any help if he returned. He told me that his problems were solely with the government of the day in Tamil Nadu and that if that government changed he would happily return to India. None of these matters, as concerning as they are for the applicant, illuminate his complaints about the conduct of the Tribunal.
In NARE v Minister for Immigration [2003] FCA 554 Allsop J opined at [10]:
“What the applicant may well not appreciate, not being a lawyer, is that the process and purpose of review to this Court does not, and cannot, involve simple re-finding of facts found by the Tribunal. Rather the review is, broadly speaking, to ensure that the Tribunal has made the decision lawfully - for instance asking itself the right question, affording procedural fairness, dealing with all matters which the Migration Act 1958 (Cth) (the "Act") says must be dealt with, not dealing with matters extraneous to its task and correctly understanding the law to apply. It is not the Court's job to review the factual findings of the Tribunal unless their quality (or lack thereof) is such as to betray a failure to undertake properly the required task. This is why it was not open to the primary judge to receive fresh evidence going to factual matters decided by the Tribunal in an attempt to demonstrate factual error in those conclusions by the Tribunal.”
It is not clear to me if the applicant is still alleging a breach of procedural fairness. But in this regard I would note firstly, that the case is covered by s 422B of the Migration Act 1958 (Cth) which confines procedural fairness to the procedures set out therein, and further that there is no obligation upon a Tribunal to allow an applicant more time to submit explanations and materials after the hearing. The applicant had noted that the Tribunal was not satisfied about his claims when he was invited to the hearing and should have prepared any further evidence by the time that hearing took place. In any event, the applicant has not given the court the benefit of any evidence which indicates that he either asked for more time or that such time was refused. We have only his assertion sworn to in his affidavit. At the very least I would have expected to have seen an extract from the tape or transcript. I would also need to see that any evidence so produced by the applicant might possibly have influenced the Tribunal to have made a different decision.
As Mr Reilly says in his written submissions "it is apparent that the applicant was unsuccessful because of the view that the Tribunal took of the facts, in particular its finding that the applicant had embellished his claims and that the chance he would be persecuted by the police in India was remote". I have seen nothing in the papers and heard anything from the applicant which would lead me to believe that those conclusions of the Tribunal were made in jurisdictional error.
This being the case, I am unable to grant the applicant the review he seeks. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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