NAPH v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1024

FEDERAL COURT OF AUSTRALIA

NAPH v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1024

NAPH v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 561 of 2003

BRANSON J
22 SEPTEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 561 of 2003

BETWEEN:	NAPH APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	22 SEPTEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 561 of 2003

BETWEEN:	NAPH APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BRANSON J
DATE:	22 SEPTEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant entered Australia with a visitor’s visa on 14 January 2002.  By a letter dated 12 February 2002, signed by a registered migration agent, he applied for a protection visa.  By his application the applicant indicated that he was a Tamil businessman born in India.  He said that he adhered to the Muslim faith.  His application form contained little detail of his claim to be in need of protection.  He claimed that he left India because his life was in danger at the hands of Hindu extremists, the Shiva Sena.  He said that this danger arose because of his religion and because he opposed their activities. 

2. The applicant, in his application form, indicated that further details would be provided ‘as soon as possible’.  In fact he did not provide further details of his claims to the respondent or any officer of the respondent.  By letter dated 19 June 2002 he was advised that his application for protection visa had been refused by a delegate of the respondent.  Under cover of a letter dated 15 July 2002, the applicant’s registered migration agent submitted an application for review by the Refugee Review Tribunal (‘the Tribunal’) of the decision of the delegate.

3. The application for review itself contained no reason for the making of the application.  In the section of the application form designed for the provision of reasons was written ‘I will submit additional documents and details in my earliest’.  By letter dated 23 January 2003 the Tribunal invited the applicant to attend a hearing on 10 March 2003.  The invitation was accepted.  By letter dated 7 March 2003 the applicant’s registered migration agent forwarded to the Tribunal a statement signed by the applicant.  By this statement the applicant claimed the following:

   ‘I was involved in Tamil Nadu Muslim Munnetra Kalakam (TMMK).  It is well known organisation for welfare and social work.  I was very much involved in this organisation and was playing a vital role in this organisation by serving those needy people.  The rest of other time I helped my fathers business.  At that time, I got opportunity to meet various people from various backgrounds.

   As days go by I started to realize that some Hindu extremist did not like my activities in which I was helping poor people and increase my popularity because I am from Muslim background.

   One day I was giving speech in the street to a group of people to raise fund for orphans because they needed our help.  In that time four police man came to me and asked me to stop the speech.  I told them that prior to that meeting I have already got permission from the council to have this meeting but they denied that and I was arrested and accused by the police that I used that fund for my own interest and Muslim organisation which was totally false.  That was only pre plan act by the Hindu Extremist.  Furthermore they accused me of creating problem among the Muslim and Hindu community by having public meeting in various places.  I denied that allegation which has been purposely being pushed on me to make my life difficulty.

   In the police custody I was beaten by the police till I was unconscious.  I was totally helpless.  Later I found out that Hindu extremists influenced those police.  When I got my consciousness few hours later, I saw some local member of Viswa Hindu Parisad and Siva Sena and they threatened me saying that they will make my life hell if I continue my activities.  Those VHP people scream at me saying that we Mulsims people are second class citizens in India and there is no place for us and we all Muslims should go to Palestine otherwise they will treat us like a slave in India.  The police officers also join with those fanatic people to make my life as hell as possible.

   Then I decided to escape from detention to save my life and get tortured from the cruel police.  I got the impression that they will kill me if I stay there.  When senior officers were away I approached one police constable to organise my escape and I also offered gold chain and ring.  He accepted my offer and I was able to escape from detention.  Then I went to Madras which is capital of Tamil Nadu.  As per family and friends instruction I was with my friends house.  The police went to search me in my house and they threatened to torture my parent if they do not give more information about me.

   As per friend and families instruction, I stayed with my friend’s place.  In the main time on [sic] of my friend suggested me to leave the country where I can live safely.  My friends organise visa for Australia and I came to Australia and lodged an protection visa.’

4. By a decision handed down on 8 April 2003 the Tribunal affirmed the decision not to grant the applicant a protection visa.  The Tribunal in its written reasons for decision noted the vague and general nature of the claims initially advanced by the applicant.  It also noted that the applicant advanced more specific claims for the first time only three days ahead of the Tribunal hearing.  Those more specific claims were also made orally by the applicant at the Tribunal hearing.  The Tribunal did not accept the more specific claims.

5. The Tribunal is noted that the applicant did not claim to be a senior member of the Tamil Nadu Muslim Munnetra Kalakam (‘TMMK’) and he did not claim previous difficulties with the police, Hindu extremists or the authorities.  Nor, it noted, did he claim to have been involved in organising or participating in communal tensions, demonstrations or riots.  The Tribunal referred to the absence of evidence of any kind supporting the applicant’s claims.  The Tribunal rejected the claims made by the applicant.  Having done so, it was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

6. By his application to this Court under s 39B of the Judiciary Act 1903 (Cth) the applicant has identified no grounds for his claim for relief in respect of the decision of the Tribunal. Nor does his supporting affidavit identify any purported defect in the decision of the Tribunal. The applicant has failed to take any step in response to a direction made by a Registrar of the Court which allowed him to file and serve an amended application and additional evidence. The applicant did not comply with the Registrar’s direction to file and serve an outline of his submissions on this application.

7. Before the Court today the applicant has done no more than question why the Tribunal did not believe the claims made by him.  As Mr Smith, counsel for the respondent, pointed out in his written submissions to the Court the Tribunal’s decision turned on its findings of credibility.  Credibility is a matter for the Tribunal alone.  Mr Smith further submitted that the approach adopted by the Tribunal was entirely appropriate having regard to the authorities which bound the Tribunal.

8. As the applicant has no legal representation of his own I have myself given careful consideration to the decision of the Tribunal.  In my view, no error, whether jurisdictional or otherwise, can be found in the approach adopted by the Tribunal.  The application to this Court is dismissed with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:             25 September 2003

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	22 September 2003
Date of Judgment:	22 September 2003