NAQU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs
[2003] FCA 461
•15 MAY 2003
FEDERAL COURT OF AUSTRALIA
NAQU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 461
NAQU of 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 33 of 2003JACOBSON J
15 MAY 2003
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 33 of 2003
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
NAQU of 2002
APPELLANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
JACOBSON J
DATE OF ORDER:
15 MAY 2003
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1The appeal be dismissed.
2The appellant pay the respondent’s costs of the proceedings.
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 33 of 2003
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
NAQU of 2002
APPELLANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
JACOBSON J
DATE:
15 MAY 2003
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Introduction
This is an appeal from a decision of Driver FM dismissing an application for review of a decision of the Refugee Review Tribunal (“the RRT”) handed down on 11 July 2002. The RRT affirmed a decision of a delegate not to grant a protection visa.
The appellant is a citizen of India. He is a Sunni Muslim who claims to have a well-founded fear of persecution on the ground of his religion.
The question which arises on appeal is whether the learned magistrate was correct in finding that the RRT’s reasons disclosed no jurisdictional error.
The Decision of the RRT
The appellant made five claims of persecution before the RRT. The first was that he suffered violence at the hands of Hindu fundamentalists following the demolition of the Babri Mosque in his home State of Uttar Pradesh in December 1992.
The RRT accepted that he was attacked and beaten but said that this did not amount to persecution within the Convention unless the State either encouraged or was powerless to prevent it. The RRT referred to the decision of the High Court in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 257-258 per McHugh J. The RRT stated that the question was whether the State would provide the appellant with a level of protection which was sufficient to remove a real chance of persecution; see Minister for Immigration and Multicultural Affairs v Prathapan (1998) 86 FCR 95 (“Prathapan”) at 104 –105 per Lindgren J (with whom Burchett and Whitlam JJ agreed).
The RRT was satisfied on the basis of country information that the appellant would be able to avail himself of State protection and that the Indian Government is not powerless to protect its citizens from inter-communal violence, and takes active steps to provide the requisite level of protection.
The third claim was that the appellant’s family was threatened and told to leave the area where they lived. The RRT accepted that the threats were made but was satisfied that the threats were “merely intended to intimidate” the appellant and his family. The RRT was satisfied that the appellant did not “seriously feel threatened” and that the threats therefore did not fall within the definition of persecution.
The RRT reached this conclusion on the basis that the threats had occurred over a number of years, without being acted on, in circumstances where the appellant and his family had not moved on from the area, and where there was ample opportunity for those making the threats to act upon them but they had not done so. The RRT was satisfied in any event that the appellant was able to avail himself of State protection from any such threats.
The fourth claim was that the appellant had to pay bribes to airport officials when he left India. The RRT was not satisfied that this amounted to persecution for a Convention reason. The Tribunal’s view was that the appellant was a victim of corrupt officials.
The Decision of the Federal Magistrate
Driver FM dismissed the application principally upon the basis that the only grounds put forward by the appellant amounted to an attack on the merits of the decision.
The magistrate noted at para [1] of his reasons, that one of the grounds of the application asserted a denial of procedural fairness, namely that the appellant was unable to fully present his case to the RRT.
However, the learned magistrate stated at para [3] that the appellant did not point to anything which constituted a denial of procedural fairness. Rather, the appellant’s submissions on this issue also amounted to an attack on the RRT’s findings of fact.
The magistrate stated at para [4] that, in his view, the findings made by the RRT were reasonably open to it on the material which was before the RRT.
The Appeal
The notice of appeal is in very general terms. The appellant filed written submissions which were also in general terms. He appears to have had legal assistance in the preparation of the submissions which are in a form commonly filed in the Court.
The written submissions assert that the RRT denied the appellant procedural fairness, ignored the merits of his claim and ignored or overlooked evidence and documents.
In his oral submissions, the appellant said that the evidence which the RRT overlooked was that the Government assisted the rioters who demolished the Babri Mosque by putting police around the area and that lots of Muslims were killed in the riots.
The appellant’s oral submission on the issue of procedural fairness was really a submission which sought to attack the merits of the RRT’s decision.
It is clear that the appellant was unsuccessful before the RRT because of the findings which the RRT made that the appellant’s assessment of his fears of harm in the future were not well-founded.
These were findings of fact which as the learned magistrate held, were a matter for the RRT and not for the magistrate; see eg A v Minister for Immigration and Multicultural Affairs (1999) 53 ALD 545 at [54] per French, Merkel and Finkelstein JJ.
The RRT stated the principle upon which it determined the question, namely that the test is not whether the State can guarantee protection. Rather, the RRT said, the test is whether the State will extend to the applicant the same degree of protection as that accorded to any of its other nationals and provide an applicant with a level of protection sufficient to remove a real chance of persecution; see Prathapan at 104. I see no error in this approach.
The finding which the RRT made that the threats to the appellant and his family were not sufficiently severe to constitute persecution were also matters of fact for the Tribunal; see Minister for Immigration & Multicultural & Indigenous Affairs v Kord (2002) 67 ALD 28 at [3] (per Heerey J); at [53] – [56] per Marshall and Dowsett JJ.
The RRT’s finding that the bribes which were obtained at the airport were motivated by corruption rather than by reason of any perception as to the appellant’s religion was also a matter of fact for the Tribunal.
In my opinion, Driver FM was correct in dismissing the application upon the ground that the only challenge to the decision of the RRT was an attack on the merits which did not constitute jurisdictional error.
Orders
The orders I propose to make are that the appeal is dismissed with costs.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate:
Dated: 15 May 2003
The appellant appeared in person. Counsel for the Respondent: Mr T Reilly Solicitor for the Respondent: Clayton Utz Date of Hearing: 2 May 2003 Date of Judgment: 15 May 2003
0