NAYO v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1161

FEDERAL COURT OF AUSTRALIA

NAYO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1161

NAYO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N2540 of 2003

ALLSOP J
6 SEPTEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 2540 of 2003

BETWEEN:	NAYO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	6 SEPTEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondents 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 2540 of 2003

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

JUDGE:	ALLSOP J
DATE:	6 SEPTEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application under s 39B of the Judiciary Act 1903 (Cth) in which statutory relief is sought in respect of a decision of the Refugee Review Tribunal (the “Tribunal”) made on 16 October 2003 and handed down on 11 November 2003. The application has nine grounds. They are in summary form as follows:

   1.That the Tribunal did not take into account all relevant information and in doing so erred in law (this is effectively the firstnamed of the grounds).

   2.That the Tribunal took an overly stringent approach to the question of credibility of the applicant (this is the first numbered ground of the application, the relevant consideration ground being contained in the application under the claims of the applicant).

   3.That the Tribunal made assumptions without providing concrete evidence to back up its claims.

   4.That the Tribunal did not give weight to the evidence provided by the applicant.

   5.That the Tribunal did not take into account a certain factual matter concerned with his visa.

   6.That the Tribunal failed to consider a particular fact, that is that the applicant was having problems with communication and therefore was not able to provide a lot of evidence to support his claims.  In this respect the applicant also indicated in the application that he had stress and trauma prior to arriving in Australia and was still experiencing this by reason of the fact that he had left his wife and child behind in India.

2. This sixth ground asserted that these matters had not been taken into account by the Tribunal.  The seventh ground identified five extracts from Amnesty International reports on India from 1999 through to 2003 and alleged that the Tribunal had failed to consider this type of material in coming to its decision.  The eighth ground of appeal was the failure to take into account various articles that provide evidence of mounting violence in the applicant's home state.  The ninth and final ground was that the applicant was aggrieved by the decision because he honestly believes that he will be a prime target for persecution if he returns to India.

3. The applicant is a citizen of India of the Hindu religion who was accepted by the Tribunal to be a member of the BJP and to have been active in his local branch in Mumbai.  The gist of the claims made by the applicant is that he fears for his safety in India from Muslim groups, in particular the All Indian Muslim League, who the applicant says have been a danger to him in the past and who will kill him if he goes back to India.  The Tribunal's reasons dealing with its findings and reasons were short and were as follows:

   and in the settled version of these reasons I will set out those findings and reasons on pages 8 and 9 of the Tribunal's reasons.

   On the basis of his passport, the Tribunal accepts that the applicant is a citizen of India and assesses his claims against the country.

   The Tribunal accepts that the applicant is a member of the BJP party and is active in his local branch in Mumbai.  It accepts that he travels from time to time to BJP seminars or conference at the expense of the party.  It is not of the view that this level of activity distinguishes the applicant form hundreds of thousands of others or makes him a particular target to those who have different political opinions form the BJP.

   The Tribunal accepts that the applicant may have been involved in incidents which made him frightened, or in which he may have suffered minor harm.  It notes that his accounts of these varied in his written and oral statements but the Tribunal accepts that the applicant, at various times, suffered from stones being thrown at or towards him and from being jostled and hit. However, even cumulatively,, these incidents do not constitute harm amounting to persecution.  The Tribunal notes that the applicant could not identify his assailants at any point; that on all occasions he was in a crowd (and the crowd at the Gandhi anniversary would have been enormous); and that the incidents he mentioned took place in different places, namely Bombay and Delhi.  The Tribunal finds that the applicant has been the victim on several occasions of random and opportunistic harm, attributable to no particular person or group.

   The Tribunal discounts the applicant’s testimony about particular threats from the All India Muslim League.  His account of threatening phone calls over a period of three to four years was unconvincing:  the testimony was not volunteered by the applicant but only mentioned, with great uncertainty and tardiness, as the result of questions put by the Tribunal.  The Tribunal cannot given any weight to the “threatening letters” submitted to it by the applicant.  The letter dated 30 September 2002 is addressed to both the applicant and his friend and (according to the interpreter at hearing) indicates that the two should leave the BJP or die.  It is implausible that an organisation would make threats to two people about leaving a political party whose members and supporters number in the millions.  It is completely pointless.  The Tribunal also notes that the letterhead is from an organisation in Bangalore.  Bangalore is 900 kms from Bombay and even though the applicant mentioned going to Bangalore once for a BJP conference, he and his friend are hardly likely targets for concern by a group such a distance away.

   The second letter submitted is even more implausible than the first, being written some nine months after the applicant left India by a person who claims to be watching the applicant’s house.  It is implausible that a threatening letter is signed and that the envelope contains the sender’s address.  It is implausible that a letter is written to an apparently known target in a language which he does not use.

   The Tribunal has grave concerns about the veracity of both the letters submitted and does not place weight on either of them as evidence that the applicant received threats.

   The Tribunal notes that the applicant, who had lived and worked overseas for the major part of his adult life, made orderly plans to leave India, applying in the first instance (and unsuccessfully)( to two western countries for visas. He was granted a short-term visa to Australia on 2 October 2002 and despite his claims about fearing that his life was in danger, did not utilise this visa for another four weeks, departing only a day before it became invalid.  The applicant’s travel procedures, in all, do not indicate a person fleeing for his life.

   The Tribunal is not satisfied that the applicant has suffered harm, let alone harm amounting to persecution, for reason of his political opinion (or any other Convention reason).  The chance that such harm will befall the applicant in the reasonably foreseeable future is remote.  It follows that the Tribunal is not satisfied that the applicant has a well founded fear of persecution for a Convention reason.  He is not a refugee.

4. As can be seen from what the Tribunal said, the Tribunal did not accept much of what the applicant put to it.  Ms Allars, for the Minister, has filed careful written submissions dealing with each of the grounds as I have identified them.  I have read carefully Ms Allars' submissions and consider the reasons for the Tribunal and court book in the light of those submissions.  Those reasons shall remain with the court file.  I agree with the submissions contained within them.

5. The applicant's claims can be summarised as follows.  He joined the BJP in 1972 and became secretary in his local area in 1980.  He lived outside India for periods between 1976 and 1980 and 1984 to 1993.  In 1993 he returned to Moombi where he was engaged in a restaurant and was actively involved in the local ward of the BJP.  He recounted various incidents with Muslims with whom he came into contact. 

6. He claimed that he had been involved in a fight with Muslims after a BJP seminar.  He claimed that he had threatening phone calls from the All Indian Muslim League to his restaurant and home.  He claimed that on 11 September 2002 while in Delhi on BJP business he was attacked.  He said he was stoned by Muslim occupants of a car in October 2002. He said that he received a threatening letter after 30 September 2002.  He said that after attending a ceremony to mark the anniversary of Mahatma Ghandi's birthday he had a narrow escape from a crowd where guns were fired and later received a threatening phone call.  This was in October 2002.  He claimed that he received the second threatening letter in August 2003.

7. As can be seen from the Tribunal's reasons which I have set out earlier the Tribunal accepted some aspects of what the applicant said.  However, in important respects the Tribunal disbelieved the applicant in respect of key parts of his evidence.  The first particularised complaint is the complaint that the applicant's credit was decided upon without attention to proper principle.  The Tribunal rejected the applicant's claims in the terms that it did in a way which does not display any failure to attend to its task as identified by Professor Hathaway in his work on the law of refugee status or in any other respect.

8. On the material that was before the Tribunal it was for the applicant to satisfy the Tribunal that he has suffered harm and will suffer harm so as to satisfy the Convention.  Part of that task is the assessment of the evidence of the applicant.  The reasons of the Tribunal though brief do not display in my view any failure to attend to its task or any view which is otherwise irrational or capricious. 

9. The complaint that the Tribunal made assumptions without concrete evidence is also met by the proposition that it is for the applicant to satisfy the Tribunal of the matters underpinning his claim.  The complaint that the Tribunal did not give weight to the evidence provided by the applicant is a complaint about the factual findings of the Tribunal and of the Tribunal not being satisfied of the matters that were being put to it by the applicant.  Subject to the position of the Tribunal being irrational or capricious those matters of factual satisfaction are matters for it.

10. Precisely the same comments can be made in relation to the fifth, sixth and seventh grounds, numbered 4, 5 and 6 in the application.  The same can be said in relation to the eighth ground which is numbered seven in the application.  The final ground of appeal is an assertion to this Court on judicial review as to the applicant's current belief of the danger he faces.  The task of this Court is the judicial review in order to ascertain whether there has been jurisdictional error in that Tribunal's decision, not to engage upon a similar fact finding task as carried out by the Tribunal.  For the above reasons, the application should be dismissed.  To the extent that those reasons have truncated any adoption of the written submissions of Ms Allars, they should be taken as incorporating an acceptance of her submissions.

11. For those reasons the application will be dismissed with costs and I so order.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:             6 September 2004

The Applicant appeared in person with the assistance of an interpreter.
Counsel for the Respondent:	Ms Allars
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	6 September 2004
Date of Judgment:	6 September 2004