NAWO v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 230

FEDERAL COURT OF AUSTRALIA

NAWO v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 230

MIGRATION – application for judicial review of a decision of the Refugee Review Tribunal – dismissed

Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476

NAWO v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N1532 of 2003

HILL J
12 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1532 OF 2003

BETWEEN:	NAWO APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	12 March 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The Applicant’ application for judicial review is dismissed.
2. The Applicant pay the Respondent’s costs of the application.

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	N1532 OF 2003

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

JUDGE:	HILL J
DATE:	12 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of India. He seeks judicial review of a decision of the Refugee Review Tribunal affirming the decision of the Minister for Immigration & Multicultural & Indigenous Affairs not to grant to him a protection visa. 

2. The Tribunal summarised the main elements of the Applicant's claim in a precis which was read to the Applicant at the hearing and with which he apparently agreed. That precis is as follows: 

   “You are a Tamil, married and of the Hindu religion. You were educated between 1965 and 1977. You have lived virtually all your life in Chennai, living at your last three addresses for periods of about three years. You resided at your most recent address between February 1999 and 2002. You joined the RSS many years ago, and gradually took office at higher and higher levels over the years.

   You obtained your first passport in 1984.

   Your activities in the RSS caused you to be persecuted by leading community figures. In the early years you were imprisoned for short periods of a few days ons several occasions. Following the destruction of the Babri Masjid mosque in 1992, you were arrested even though you had not taken part in the incident. You were eventually bailed out after some months.

   Your passport expired in 1994, and you were issued with the one you now hold.

   When you led a procession advocating the building of a Hindu temple on the site of the destroyed Ayodhya mosque, you were again arrested and held for a long time before being bailed. When there was an industrial dispute at your place of work, you tried to organise a protest. Police learned of your plans and attacked, injuring several people including yourself. You were taken to hospital, and were later imprisoned. Again you were bailed.

   There was an incident when the RSS refused to accept an official order that a planned Hindu procession should not go past the site of a Muslim mosque. You were again arrested and held for some time before being bailed.

   The RSS became involved in collecting donations in the context of a possible India/Pakistan conflict, and you cam to have concerns regarding the accuracy of the accounting. This led to a confrontation with other RSS leaders. Soon after this, a Hindu priest was attacked by Muslims, and RSS people held a protest. Several people were arrested, but your RSS colleagues did not bail you out as they had done in the past. Finally, your family bailed you out. You then quit the RSS. Some months after you left, the Treasurer of the RSS was killed by Muslims, but your former colleagues took the opportunity to accuse you of complicity in the murder. Police started trying to implicate you.

   To escape, you travelled ti Australia and New Zealand. While you were away, you heard that the real guilty parties had been arrested so you returned to see if things were safe. However, your enemies had only stopped trying to implicate you because they thought you would not return, and when they knew you were back, they started organising false witnesses against you. You sought legal advice and having learned you would not be likely to get bail if you were arrested, you arranged to escape again. A  bribe was paid to get you through the airport.

   You fear that, if you return you will be arrested, tortured and maybe killed.”

3. The Tribunal did not accept that the applicant's account of his experience, as elaborated, no doubt, in the evidence he gave to the Tribunal, was correct.  It noted that the Applicant's oral evidence was at variance with written evidence he had submitted in relation to three key events. In saying this, the Tribunal noted that the applicant had claimed his memory not to be good because of the recent death of his father and because of back pain.

4. However, the Tribunal considered these factors would not have had the result as to cause him confusion on matters of importance.  The Tribunal was concerned, for example, that the Applicant's account of the time he had been imprisoned in 1992 varied from three months to one month.  In his oral evidence the Applicant said there were only three occasions when he was allegedly detained for more than three weeks, his written claims on the other hand, listed five occasions.

5. At the hearing the applicant said that he came to no harm. Apart from the time when he was arrested in India, his written claims on the other hand referred to there being an attempt to kill him.  The Tribunal referred in some detail to other discrepancies. It noted that the Applicant had not been able to produce certain evidence in support of his claim, and in particular it did not accept that the Applicant's lawyer, the Applicant's uncle or someone else on his behalf would not have been able to have obtained certain evidence to which the Tribunal referred between April 2002 and the time of the hearing.

6. These matters led the Tribunal to the conclusion that the applicant was not, as he had said, a member of the RSS, had not been arrested at various times because of his activities in the RSS or in a union, and that he had not, as he had said, been accused of the murder of an RSS treasurer.  Indeed, the Tribunal found that the Applicant was not wanted by the Indian authorities because of any past activities and was not adversely regarded by the RSS or its political allies because of any past internal dispute over accounting, such as was alleged by the Applicant before the Tribunal. It also did not accept that RSS members were seeking the Applicant with the intention of harming him. 

7. The Tribunal in the circumstances found that the Applicant did not have a well-founded fear of persecution in India.  Accordingly, the Tribunal was not satisfied that he was a person to whom Australia had protection obligations.

8. The Applicant was not represented before me but had the assistance of an interpreter in the Tamil language.  He filed with the court and relied upon written submissions that had apparently been prepared for him by a friend.  There were nine matters in all raised by the Applicant, and I will deal shortly with each of them. 

9. The first matter raised by the Applicant was that as a result of his father's death shortly before the Tribunal hearing, and because he was suffering severe back pain, the Tribunal should have postponed the hearing.

10. Apparently some time before the hearing the Applicant did seek an adjournment of the hearing and supplied a medical certificate which covered the period until 20 August.  The Tribunal did refuse, at that time, an adjournment but, ultimately, the hearing was scheduled for 26 August 2003, that being a date after the medical certificate had expired.  The Applicant told me from the bar table that he decided that he could go to the hearing and that he could attend it.  On the day of the hearing the Applicant did not again raise the issue of an adjournment.  Even if he had done so it would not be an error of law for the Tribunal to refuse an adjournment unless an application for an adjournment was accompanied by appropriate medical evidence. That was not the case here.

11. The Applicant's second complaint was that in the first full paragraph on page 18 of the Tribunal's reasons, the Tribunal appears to indicate its view that the events there referred to did not happen.  The Applicant says that the authenticity of the information referred to in that paragraph could have been verified by the Tribunal Member.  Indeed, the Applicant suggests that the Tribunal Member deliberately failed to carry out such an investigation, "Fearing for the outcome of truth".

12. There is no evidence at all that suggests that the Tribunal in some way wished to hide the truth, if that is what is suggested.  Further, there is no obligation on the part of the Tribunal to conduct research in an endeavour to find some corroboration for what an Applicant says.  It is up to an Applicant to provide to a Tribunal such independent evidence as there may be to support his or her case.

13. I had some difficulty understanding what the Applicant’s third submission meant.  However, it seems that the Applicant's complaint is that the Applicant had been unable to provide proof.  The provision of proof being:

    Beyond his capacity.  He was not able to reach the same in India and provide the same and prove his case.

14. It is not an error of a kind to permit this Court to intervene that an applicant, for whatever reason, is unable to provide proof of his claim.

15. In his fourth submission, the Applicant explains in some detail why he says he was unable to obtain material in India which would have assisted his case.  The comments I made in respect of the third paragraph are equally applicable.

16. In his fifth submission, the Applicant refers to a paragraph in the Tribunal's reasons in which reference is made to protections that the legal system affords in India.  The Applicant complains that while India has a very good legal system, there is bias, corruption, political gain and oppression.  This may or may not be the case, but what is said does not constitute an error of law on the part of the Tribunal justifying intervention by the court. 

17. In his sixth submission, the Applicant refers to a concern which was expressed in a letter by the Tribunal to the Applicant before the hearing that the Applicant although arriving in Australia in February 2002 had, after that date departed Australia and returned to India and that an application for a protection visa had not been lodged until May 2002.  The Applicant replies now that he wasn't aware of the possibilities of obtaining a visa and had no legal assistance.  Whether or not what the applicant says is true it hardly constitutes a legal error on the part of the Tribunal. 

18. In his seventh submission, the Applicant complains that the delegate had not afforded him the opportunity of making submissions concerning materials from the Department of Foreign Affairs and Trade adverse to his claims.  A failure to afford procedural fairness does constitute a jurisdictional error:  Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476. However, the Applicant has wholly misunderstood the particular paragraph of which he complains. It seems that on 19 August 2002 the delegate of the Minister by letter advised the Applicant that it would be taking into account certain information which was adverse to his claims and which could result in his application being refused and thus gave him the opportunity to respond. In other words, the delegate was seeking to do exactly what the Applicant complains it had not done, the delegate was making the Applicant aware that the Department of Foreign Affairs and Trade material to which the letter refers was adverse to the Applicant's claim and that the delegate might take it into account. There was no denial of procedural fairness by the delegate. More importantly, as it happens, it does not appear that the Tribunal's reasons even took that material into account, so there was no denial of procedural fairness by the Tribunal either in this regard.

19. In his eighth submission, the Applicant refers to another paragraph of the letter which I have described above.  The Applicant submits that in commenting on the Indian legal system the delegate did so with inadequate legal knowledge. Even if what the Applicant says is true, no jurisdictional error could be involved in the delegate writing to the Applicant before making its decision, giving him the opportunity to comment on the matter. 

20. In his final submission, the Applicant refers to comments of the Tribunal  in which the Tribunal notes that when the matter was before a delegate of the Minister, the delegate, while not formally granting the Applicant an extension of time to provide information, in fact waited until a time after the Applicant had requested the extension before making a decision. 

21. The Applicant suggests that he could not be expected to read the mind of the delegate.  The complaint is one about the delegate, not about the Tribunal.  The Tribunal heard the matter afresh.  Whatever complaint the applicant may have about a delegate of the Minister it does not involve any error on the part of the Tribunal.

22. The applicant's application to the court was expressed in general terms.  It read:

    1.Procedures as required by the Migration Act was not observed in making decision.

    2.The Tribunal conducted the hearing in a biased approach.

    3.There was no proper reasons or supporting evidence.

    4.The benefit of doubt was not given to the Applicant.

    5.The Tribunal expected more material evidence which could not be gathered from here.

23. Apart from the fifth of these grounds which was dealt with in the Applicant's submissions none of them were the subject of further elaboration.  What is more, there is nothing in the Tribunal's reasons in any way suggesting a failure to observe procedures or that the Tribunal was biased in deciding the matter adversely to the Applicant.  The Tribunal certainly gave reasons for its decision and there's nothing to suggest that the Tribunal failed to give the benefit of the doubt to the Applicant.

24. The application is, in my view, without merit and must be dismissed.  The Applicant is ordered to pay the Respondent’s costs of the application.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:             12 March 2004

Applicant appeared in person
Counsel for the Respondent:	G Kennett
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	12 March 2004
Date of Judgment:	12 March 2004