Nans of 2002 v Minister for Immigration &

[2003] FCAFC 104

FEDERAL COURT OF AUSTRALIA

NANS of 2002 v Minister for Immigration &
Multicultural & Indigenous Affairs [2003] FCAFC 104

NANS of 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N1220 OF 2002

WHITLAM, FINN and GOLDBERG JJ
22 MAY 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1220 OF 2002

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

BETWEEN:	NANS of 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	WHITLAM, FINN and GOLDBERG JJ
DATE OF ORDER:	22 MAY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The appeal be dismissed with 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	N1220 OF 2002

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

BETWEEN:	NANS of 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	WHITLAM, FINN and GOLDBERG JJ
DATE:	22 MAY 2003
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. The appellant, an Indian citizen, applied unsuccessfully for a protection visa (Class AZ).  He claimed he feared persecution if returned to India because of his membership of, and activities with, the Indian Union Muslim League.  He asserted that he faces harm both from the Bharatiya Janata Party (“BJP”) and the Communist Party of India (“CPM”).  His application was supported by a statement that chronicled a number of incidents involving him which led to his leaving his home town and moving to Trivandrum where he obtained work with a film company.  He came to Australia with that company to make a film.

2. The reasons both for the Refugee Review Tribunal rejecting his visa application and for Madgwick J rejecting his application for judicial review are encapsulated in the following two paragraphs of his Honour’s judgment:

   “The Tribunal Member comprehensively disbelieved the applicant.  She gave reasons for this disbelief.  Additionally she found that, as the applicant stated that he had been safe in Trivandrum and had come to Australia because the opportunity arose, ‘the applicant did not have a well founded fear of persecution in coming to Australia’.  She said that she was not satisfied on the evidence that the applicant genuinely feared persecution on return to India and she was also not satisfied that there was a real chance that the applicant would be persecuted upon return to India for any Convention reason.  In particular, she did not accept the contents of certain letters which the applicant produced as genuine and said that she considered them ‘to be produced for the sole purpose of strengthening the applicant’s claims and are self-serving’.  There is nothing in what the Tribunal member has had to say about the applicant’s credibility which is so far fetched, remote or irrational as to indicate any error of law in her approach.

   The applicant appeared unrepresented and it is not to be expected that he could distinguish very well between errors of law and errors of fact.  However, the matters of which he complains are entirely factual and, even if the Court had jurisdiction to intervene (c.f. s 474 of the Migration Act 1958 (Cth)), it would only be in rare cases that mishandling of the facts would amount to a legal error justifying the intervention of any Court that did have jurisdiction. This case falls a long way short of that.”

3. The grounds of the appeal made to this Court are in the following terms:

   “(i)  Communal BJP is ruling the Indian Union from the incident took place and even now.  Therefore, it is not safe to return to India.
   (ii)  RRT decision was without taking some factual evidence submitted.  An opportunity may be granted to consider them.”

4. Neither of these suggest a viable ground of challenge to Madgwick J’s judgment in the circumstances.

5. The appellant represented himself on the appeal.  His elaboration of the matters he wished to raise before us advanced the matter no further.  He raised briefly matters of a factual character.

6. No ground of appeal has been disclosed and no error is discernible in Madgwick J’s reasons.

7. The appeal will 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 Whitlam, Finn and Goldberg JJ.

Associate:

Dated:             22 May 2003

Applicant appeared in person.
Counsel for the Respondent:	Mr A Markus
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 May 2003
Date of Judgment:	22 May 2003