NAPB v Minister for Immigration
[2004] FMCA 69
•5 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAPB v MINISTER FOR IMMIGRATION | [2004] FMCA 69 |
| MIGRATION – Review of RRT decision – where applicant claimed that the political group of which he was a member wrongly held him responsible for the death of a fellow member – where applicant claimed that he had attempted to relocate within his own country but that his persecutors had found him – whether Tribunal considered applicant’s ability to relocate within country of nationality without harm – whether findings of Tribunal open to it on the evidence – where applicant essentially seeking merits review. |
NAHI v MIMIA [2004] FCAFC 10
| Applicant: | NAPB |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 1241 of 2003 |
| Delivered on: | 5 February 2004 |
| Delivered at: | Sydney |
| Hearing date: | 5 February 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Applicant in person |
| Counsel for the Respondent: | Ms R Francois |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
The applicant pay the respondent's costs assessed in the sum of $4,500 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrate’s Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 1241 of 2003
| NAPB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is an Indian citizen who arrived in Australia on
10 October 2001. On 19 November 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 18 April 2002 a delegate of the Minister refused to grant him a protection visa and on 3 May 2002 he applied for review of that decision from the Refugee Review Tribunal.
On 12 February 2003 the Tribunal wrote to the applicant informing him that it could not make a decision favourable to him on the information that it had received, and arranged for a hearing on
13 March 2003. The applicant attended the hearing, the Tribunal made its decision on 28 March 2003 to affirm the original decision of the delegate and it handed down that decision on 17 April 2003.
The applicant applied to the Federal Court on 1 May 2003 seeking that the decision be set aside, and provided absolutely no particulars of any grounds upon which that could be done. In his affidavit in support he deposes to the fact that he is an Indian citizen; that he made an application; that the Department refused his application; that he lodged an application for review and that the Tribunal affirmed the decision not to grant him a protection visa.
On 26 May 2003 His Honour, Jacobson J, transferred the matter into this Court. Shortly prior thereto short minutes of order were made, signed by the applicant, requiring him to file an amended application by 12 June 2003 and submissions five working days prior to the hearing date. This was not done. The applicant confirmed to me today that he received advice under the Minister's Scheme.
The applicant claimed to have a well-founded fear of persecution for the Convention reason of political opinion. He claimed that since 1997 he had been targeted by a group belonging to the ABVP, a student wing of the BJP. He also claimed that in an incident in which he was involved, by virtue of his support for a friend who had stood as an independent candidate, somebody had been killed. He had been accused by the ABVP as being responsible for the death and went to various parts of India before escaping to Dubai. He claimed that after two and a half years he returned to India for a holiday, or possibly to get married, but the ABVP network managed to locate him and he returned to Dubai. He said that he was found in Dubai and, therefore, decided he had to flee to Australia.
In its findings and reasons the Tribunal said:
“The applicant has claimed persecution for reason of his opposition to the ABVP. While his evidence was confused and certain details of his evidence at the hearing conflicted with his earlier account, I accept that he was asked by the police to appear as a witness for them in the case involving the ABVP members confrontation with the police. It is plausible that the applicant was subsequently threatened by the ABVP members in his area. Given that he has claimed that he was threatened because he had agreed to assist the police, I am not satisfied that he would have been unable to have availed himself of their protection on this occasion.”
The basis upon which the Tribunal made a finding that the applicant was not a person to whom Australia owed protection obligations was because he could relocate within India without harm. The Tribunal was also unable to satisfy itself that the applicant's fear of returning for reason of his opposition to ABVP was well-founded. The Tribunal concluded that it could not accept that the applicant had been threatened by the ABVP whilst in Dubai.
Although there was no direct reference in the Tribunal's reasons for decision to it having considered whether if he did relocate from Kerala he would be safe from further threats from the ABVP, it seems to me that the decision which the Tribunal came to about the fear that he had of this group, and in particular the alleged attack on him in Dubai, would suggest that the Tribunal concluded that there would be no danger on relocation.
When this matter came before me the applicant told me that he thought he could get a protection visa or more consideration from this Court, and that was why he lodged the application. I asked him several times to tell me why he believed the Tribunal had erred in law in the manner in which it came to its conclusions. The applicant was unable to assist me in this regard.
I have read through the reasons for decision and I accept the submission made by the respondent that the RRT's findings may be summarised as being:
a)A rejection of the applicant's credit with respect to those claims it did not accept;
b)A determination that India offered the applicant effective State protection;
c)An alternative finding that it was not unreasonable to expect the applicant to relocate within India.
I find that these findings were clearly open on the evidence before the RRT.
In those circumstances I cannot see any ground upon which I can review of this decision, nor would it appear that the applicant can either. This is a plain case in which an applicant has misunderstood the scope of a Court's jurisdiction and is seeking merits review. As articulated recently by the Full Court in NAHI v MIMIA [2004] FCAFC 10 at [10]:
“To engage in fact finding about the merits of the appellants’ case is no part the function of the court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”
I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,500 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrate’s Court Rules.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
0
1
0