NAWG v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 966

FEDERAL COURT OF AUSTRALIA

NAWG v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 966

NAWG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND& INDIGENOUS AFFAIRS

N1503 OF 2003

BENNETT J
21 JULY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1503 OF 2003

BETWEEN:	NAWG APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BENNETT J
DATE OF ORDER:	21 JULY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1The application is dismissed

2The applicant is to pay the respondent’s 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	N 1503 OF 2003

BETWEEN:	NAWG APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BENNETT J
DATE:	21 JULY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application under s 39B of the Judiciary Act 1903 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).

2. The applicant, a citizen of India, arrived in Australia on 23 April 2002.  On 20 May 2002 he applied for a protection visa (class XA) setting out his claims in that application.  In summary, he claimed:

   (a)That he had suffered persecution by reason of political differences with the owners of a travel company who had employed him in Saudi Arabia for 20 years between 1981 and 2001;

   (b)That the differences had particularly arisen during the Iraqi/Kuwait war as a result of his preventing charitable donations going to terrorists, contrary to the wishes of the sons of the family who owned the business;

   (c)That he was wrongly blamed for a government raid on the business, had false "financial statements" made against him, was threatened in his house, attacked; and

   (d)That he was further threatened and told he would not be allowed to live in India.

3. On 13 August 2002 the applicant was interviewed by a delegate of the respondent (“the Delegate”) to whom he provided further documentary material in support of his claims.  On 23 August 2002 the Delegate refused the grant of a protection visa.

4. On 16 September 2002 the applicant applied to the Tribunal for a review of the Delegate's decision.  On 21 May 2003 the Tribunal wrote to the applicant advising him that it was unable to make a decision in his favour on the information before it and inviting him to attend a hearing on 28 July 2003.  On 13 July 2003 the applicant sent further material to the Tribunal and asked for a postponement of the hearing.  On 21 July the Tribunal wrote to the applicant advising him that his request for a postponement had been refused.  On 25 July 2003 the applicant wrote to the Tribunal and advised that he had been injured. The hearing was consequently postponed to 12 August 2003 and took place on that day.

5. On 18 August 2003 the Tribunal received further submissions from the applicant dated 13 August 2003.  On 18 September 2003 the Tribunal handed down a decision made on 25 August 2003 affirming the Delegate's refusal of a protection visa. 

6. In summary, the Tribunal accepted the applicant's claims about his experiences in Saudi Arabia and, in particular, his relationship with the sons of his employer, the Sheik.  Importantly, the Tribunal was not satisfied that any action taken against the applicant by the Sheik's family was motivated by his views on religion or politics whether real or imputed.  The Tribunal was not satisfied that any threats to the applicant from the Sheik's sons were made to him for anything other than personal reasons.  It was satisfied that the "essential and significant" motivation for any harassment experienced by the applicant was personal and perhaps criminal.

7. The Tribunal also accepted that people representing the applicant’s employers visited the applicant in India seeking missing files and financial reimbursement and that there continued to be threatening phone calls to the applicant from Saudi Arabia about these matters.  The Tribunal did not accept that the applicant was pursued by unknown men in India, allegedly Islamic extremists, and found that he was not subjected to harm by any such men.

8. Not only was the Tribunal not satisfied that there is a real chance that the applicant will be persecuted if he returns to India in the foreseeable future, it was also not satisfied that, in what it described as "the unlikely event that the applicant should be seriously harmed if he returns to India", any such harm would be inflicted on him for a Convention reason.  The Tribunal found that the alleged harm related to a personal matter unrelated to any Convention reason.  The Tribunal was not satisfied that the applicant had on his own evidence suffered any harm serious enough to amount to persecution.

9. The Tribunal noted that any political views the applicant may have had as a student did not appear in the past to have caused him any difficulties.  It found that he was never involved with a political group in India.  In coming to its conclusion the Tribunal took into account the US State Department's Religious Freedom report which refers, inter alia, to communal tensions being fermented by Muslim groups in India, most notably against Christians and Hindus rather than other Muslims.  The applicant referred the Tribunal to communal problems in his home state of Kerala. As the Tribunal noted, however, the applicant acknowledged that the communal problems of Kerala have no relation to his case.  The Tribunal concluded that there was nothing in the applicant's history to suggest that he might be the target of Islamic fundamentalists for any Convention reason.  It was therefore not satisfied that there is a real chance that he would be so persecuted.

10. The three grounds in the application for review do not raise jurisdictional error on their face.  Each concerns findings of fact made by the Tribunal.  In ground two the applicant asserts that there were incidents of which he did not give evidence to the Tribunal.  The Tribunal could not, therefore, take them into account.

11. The applicant appeared before me in person.   He did not need an interpreter.  When asked what his complaint about the Tribunal's findings was he said, in effect, that the Tribunal did not accept his account and did not find that he was a refugee.   He did not raise anything other than factual matters before me.

12. The findings of fact made by the Tribunal were open to it on the evidence. Those findings of fact led the Tribunal to conclude that the applicant does not satisfy the criterion set out in s 36(2) of the Migration Act 1958 for a protection visa. No error, let alone jurisdictional error, is established or, indeed, identified. It follows, therefore, that the application must be dismissed.

13. The order of the court is that the application is dismissed and the applicant is to pay the respondent's costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:             5 August 2004

Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Mr R Bromwich
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	21 July 2004
Date of Judgment:	21 July 2004