NAWN v Minister for Immigration - [2005] FMCA 70

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAWN v MINISTER FOR IMMIGRATION

[2005] FMCA 70

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Abebe v The Commonwealth (1999) 197 CLR 510
Minister for Immigration & Multicultural Affairs, Ex parte Durairajasingham (1999) 168 ALR 407
Kopalapillai v Minister for Immigration (1998) 86 FCR 547
Minister for Immigration & Multicultural & Indigenous Affairs v Respondents S152 of 2003 (2004) 205 ALR 487
Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379

Applicant:

NAWN

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG148 of 2004

Delivered on:

20 January 2005

Delivered at:

Sydney

Hearing date:

20 January 2005

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr T. Reilly

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the application is dismissed.
That the applicant pay the respondent's costs set in the amount of $4,000 pursuant to the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG148 of 2004

NAWN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 18 September 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant, a citizen of India, arrived in Australia on 4 November 2002. On 22 November 2002 he applied for a protection visa. The application was refused. He sought review by the Tribunal. He attended a Tribunal hearing on 18 September 2003. At the conclusion of the hearing the Tribunal handed down its decision affirming the decision of the Department that the applicant was not entitled to a protection visa.
The applicant claimed to fear persecution for reason of his religion in India. He claimed to be a preacher and a part-time gospel worker in Tamil Nadu and that in September 2001 he had assisted in the conversion of a Hindu man. He claimed to fear harm from that man's family as a result of those actions and that the police would not protect him.
In its reasons for decision the Tribunal set out a considerable amount of independent information about the situation in India and in relation to Christianity and conversion. It found, however, that the applicant was not credible and had created his claim to enhance his claims to refugee status. The Tribunal found it implausible that he would fear harm because he had introduced a person to a Reverend who subsequently baptised that person whilst the Reverend had no such problems, as had been claimed. The Tribunal did not accept that the applicant was a part-time gospel worker or a Christian. It was of the view that he had no knowledge of Christianity, as he could not name any apostle. This finding refers back to the description in the Tribunal reasons of what occurred in the Tribunal hearing. The Tribunal reasons for decision are the only evidence before the court of what occurred in the Tribunal hearing. The Tribunal stated that, when asked by the Tribunal for the names of the apostles, the applicant was unable to name any apostle. He said that he did gospel working by reading the Bible and that he did not have time to remain in India as the family of the convert were trying to kill him. The relevant part of the Tribunal reasons in which this finding occurs is as follows:
The Tribunal then stated that it was ‘of the view that a person who has no knowledge of basic Christian teachings would (sic) be able to work as a gospel worker.’ “Furthermore I do not accept the applicant was a part time gospel worker or a Christian. He had no knowledge of Christianity as he could not name any apostle. I am of the view that a person who has no knowledge of basic Christian teachings would (sic) be able to work as a gospel worker. It follows I also do not accept that he took a person to a Reverend for baptism. Nor do I accept that the family of the convert threatened the applicant. The applicant’s claim is implausible. I am of the view that the applicant has created his claim in order to enhance his claims to refugee status.”
Reading the whole of the Tribunal reasons, it appears that there is a typographical error in the third sentence and that the word ‘not’ should appear between ‘would’ and ‘be able to work’.
As an alternative basis for the decision the Tribunal had regard to the availability of effective state protection and the applicant's claim that the police would not assist him. It found that he had made no effort to access any of the available avenues of protection and that his claims were contrary to independent country information. It concluded that there could not be said to be a failure of state protection where the government had not been given the opportunity to respond to a form of harm in circumstances where protection might reasonably have been forthcoming.
The Tribunal considered the applicant’s claims that the convert’s family members belonged to the RSS and that he would be unable to obtain protection from the police because of their membership of the RSS. It found no independent evidence to suggest that the BJP or the RSS (the Rashtriya Swayamsewak Sangh) organised or promoted physical attacks on Christians or those doing gospel work. The Tribunal concluded that as it found that the applicant had not been harassed or harmed for a Convention reason in India, it was not satisfied that he had a well-founded fear of Convention-based persecution on his return to India.
The applicant sought review by application filed in this court on

10 October 2003. He did not file written submissions. In his application the applicant relies on 10 grounds of review. At the start of the hearing he told the court that he did not rely on that part of ground 8 (relating to the Tribunal hearing) that asserted: ‘The member then came back and handed the letter stating that the Tribunal has decided that the applicant is not entitled to a protection visa.’
A number of these grounds seek merits review. Merits review is not available in this court. This is not a re-hearing: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
One possible ‘mistake’ in the Tribunal reasons for decision warrants mention (apart from the apparent typographical error referred to above which does not amount to jurisdictional error). After describing independent information the Tribunal referred to laws introduced in Tamil Nadu in October 2002 in relation to converting a person by force and fraud. It stated that an agent of conversion would have something to fear for converting a person by force and fraud since such laws came into effect and that the applicant was ‘unaware of the provision of this new law or its effects’. It might be argued that this finding is contrary to the applicant’s original claims in connection with his protection visa application and, indeed, also contrary to the earlier account in the reasons for decision of what occurred in the Tribunal hearing. The applicant claimed in his application that recently an Act had been passed in Tamil Nadu for Conversion of Religion and that it is an offence to convert people in Tamil Nadu. However, it appears that rather than making an error about the applicant’s knowledge, the Tribunal is drawing a distinction between knowledge that there is a law about conversion and knowledge of the circumstances in which it would apply, as the country information indicates that the new law relates to conversions by fraudulent means and coercion. In any event, it has not been established that if there were such error it amounted to anything more than a factual error. There is no error of law, let alone a jurisdictional error in the Tribunal making a wrong finding of fact, Abebe v The Commonwealth (1999) 197 CLR 510 at 137. The claimed conversion occurred in September 2001, before the law came into effect and the Tribunal did not accept that the applicant did take a person to a Reverend for baptism.
The applicant failed because the Tribunal did not find him credible. Its findings in relation to credibility were open to it on the material before it. No error is demonstrated in those conclusions, albeit that they are somewhat briefly expressed: Minister for Immigration & Multicultural Affairs, Ex parte Durairajasingham (1999) 168 ALR 407 at 67 and Kopalapillai v Minister for Immigration (1998) 86 FCR 547 at 558 to 559. Moreover the Tribunal's conclusion concerning state protection is consistent with Minister for Immigration & Multicultural & Indigenous Affairs v Respondents S152 of 2003 (2004) 205 ALR 487 at [19] and [29]. The findings in relation to state protection provide an alternative basis on which the Tribunal affirmed the decision not to grant the applicant a protection visa. The Tribunal findings on this issue were also open to it for the reasons that it gives, including the country information to which it refers. As McHugh J stated in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 428, it is unlikely that a state is expected to grant refugee status to a person whose account, although plausible and coherent, was inconsistent with the State’s understanding of conditions in his or her country of nationality.
Ground 1 in the application states that the Tribunal failed to see that the applicant satisfied the definition of refugee and repeats the applicant’s claims. That statement constitutes a disagreement with the Tribunal fact-finding and conclusion and does not establish a jurisdictional error. Ground 2 appears to suggest that the Tribunal incorrectly applied the test of well-founded fear. It contends that the Tribunal erred ‘to see that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent’. However there is nothing in the Tribunal reasons for decision to suggest that it either misunderstood or misapplied the test of well-founded fear. The Tribunal correctly stated the test in relation to well-founded fear in the introductory part of its reasons for decision (acknowledging that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent). There is nothing in its reasons to indicate that it erred in the manner contended.
Ground 3 takes issue with the Tribunal’s reliance on independent information. The applicant contends that his situation had to be assessed ‘in his own surroundings and events that happened… when he fled’. Again, no jurisdictional error is established. First the Tribunal did not accept the applicant's credibility. Secondly it properly had regard to relevant up-to-date information in relation to the situation in India in addressing the future. The application does not identify the manner in which there is said to be a jurisdictional error. Nor is any such error apparent.
Grounds 4, 5, 6, and 7 all take issue with the merits of the Tribunal decision and amount to a re-arguing by the applicant of his case. They do not establish a jurisdictional error.
Ground 8 initially takes issue with the Tribunal finding that the applicant was not a part-time gospel worker or a Christian. Insofar as issue is taken with the Tribunal findings, I have already indicated that merits review is not available. This ground also takes issue with the conduct of the Tribunal hearing on the basis that it was ‘conducted shortly’, that the presiding member “orally said she do not accept the applicant's contention and went inside. The applicant was mentally shocked: confused and was completely out of his senses. Immediately thereafter she asked the applicant to name the apostles. The applicant listed six or seven apostles. Therefore the contention of the Tribunal that the applicant had not named any apostle is not correct.”
There is no transcript of the Tribunal hearing before the court. The Tribunal's account of what occurred in the hearing is not consistent with this account. It states that when asked by the Tribunal for the names of the apostles, the applicant was unable to name any apostle. The respondent's written submissions were filed some considerable time ago, on 21 December 2004. They draw the applicant's attention to the absence of a transcript of the hearing. Nonetheless, no transcript of the hearing has been filed by the applicant. The evidentiary basis for any claim arising out of the circumstances which he contends in ground 8 of his application is not established. In particular no lack of procedural fairness is established.
Ground 9 and ground 10 take issue with the merits of the Tribunal decision and do not establish any jurisdictional error.
As no jurisdictional error has been established the application must be dismissed.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful. The respondent seeks that he meet the costs of these proceedings. There is nothing in the circumstances before me to warrant a departure from the normal rule that the unsuccessful applicant should meet the respondent's costs. Nor is there anything to suggest that any more work has been required than in other cases of this nature. I consider that an appropriate amount of costs consistent with those awarded in other similar matters is the sum of $4,000.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 2 February 2005