NAYZ v Minister for Immigration and Multicultural and Indigenous Affairs
[2006] FCA 665
•22 MAY 2006
FEDERAL COURT OF AUSTRALIA
NAYZ v Minister for Immigration & Multicultural & Indigenous Affairs
[2006] FCA 665NAYZ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 2310 of 2005
BRANSON J
22 MAY 2006
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2310 of 2005
BETWEEN:
NAYZ
APPELLANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENTJUDGE:
BRANSON J
DATE OF ORDER:
22 MAY 2006
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2310 of 2005
BETWEEN:
NAYZ
APPELLANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT
JUDGE:
BRANSON J
DATE:
22 MAY 2006
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant has been unsuccessful in his attempts to obtain a protection visa under s 36 of the Migration Act 1958 (Cth). He claims to be a person in respect of whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees. As the appellant is an Indian national in Australia, it is not in dispute that Australia will have protection obligations in respect of him if, owing to a well‑founded fear of persecution for reasons of political opinion, he is unwilling to avail himself of the protection of India. The appellant, as he confirmed today, does not assert a fear of persecution in India for any reason other than his political opinion.
The appellant’s claims to have a well‑founded fear of persecution for reasons of political opinion is founded on his asserted membership of the Kerala Democracy Movement (‘KDM’) which he has characterised as part of the Communist Party. In a letter to the Refugee Review Tribunal (‘the Tribunal’) he asserted:
‘Being an active member of Kerala Democracy Movement (KDM) a part of communist party led by Mr. Nampothripatt a famous communist veteran and leader, I voiced the grievances of oppressed people and fought for their redressal and rights.
Hence I was not liked by the ruling party and the police service. When politicians and their rowdies criticised me in congress meeting, the police people always harassed me, illtreating me, that I am unnecessarily hindering the ruling party.’
The Tribunal rejected the appellant’s claim to be a member of the KDM. It noted that he demonstrated very poor knowledge of Maoism, Marxism and socialism. It further noted that aspects of his oral evidence concerning his asserted membership, such as when and why he joined the party and his activities as a party member, were vague and that his claim of membership of the KDM was not corroborated in any way. The Tribunal was not satisfied that there was a real, or indeed any, chance that the appellant would be persecuted in India should he return there because of his alleged membership of the KDM.
The appellant also claimed in his letter to the Tribunal that he had been threatened by BJP politicians, arrested (possibly on 2 or 3 occasions) by the police on false allegations and assaulted and tortured while in custody and prevented from earning an income by rowdies who additionally threatened to kill him.
The Tribunal noted, having regard to a copy of the appellant’s passport provided to the Tribunal by the appellant, that the appellant had travelled to Malaysia and Singapore, and thereafter returned to India, after the time at which he alleged that he experienced the above problems in India. For this reason the Tribunal was not satisfied that his story was credible or that the appellant had a fear of persecution in India at the time of his return there. The appellant did not claim that his alleged fear of persecution in India was in any way based on events which occurred later than his trip to Malaysia and Singapore.
The appellant’s notice of appeal alleges simply that the Federal Magistrate erred in law by not finding that the Tribunal made a jurisdictional error and a factual error in concluding that he is not entitled to a protection visa. In response to questions from me today the appellant has not been able to identify the nature of the alleged error or errors. Nor has he been able to point to any error in or affecting the reasons for decision of the learned Federal Magistrate or indeed of the Refugee Review Tribunal.
As mentioned above, the decision of the Tribunal was based on its adverse findings concerning the appellant’s credibility. It did not accept the truth of the story told by the appellant in support of his claim to fear persecution in India. It was for the Tribunal, not the Federal Magistrates Court, to assess the appellant’s credibility.
The written submissions filed on his behalf make no reference to the reasons for judgment of the Federal Magistrate. They contain unparticularised allegations of error in the reasons for the decision of the Tribunal. Some of the allegations of error do not seem to bear any relationship to the actual written decision of the Tribunal. The appellant has confirmed that this document was prepared for him by somebody else. The conclusion I reach is that it is more likely than not that some, if not all, of the allegations set out in the appellant’s written submissions have been copied from documentation concerning other proceedings.
I am satisfied that what the appellant seeks from this Court is a merits review of the decision of the Tribunal. I am not satisfied that any appealable error affects the decision of the Federal Magistrate.
The appeal is dismissed with costs.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate:
Dated: 30 May 2006
The appellant appeared in person. Counsel for the Respondent: Mr G T Johnson Solicitor for the Respondent: Clayton Utz Date of Hearing: 22 May 2006 Date of Judgment: 22 May 2006
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