Naza v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 402

FEDERAL COURT OF AUSTRALIA

NAZA v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 402

NAZA v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 1993 OF 2003

EMMETT J
10 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1993 OF 2003

BETWEEN:	NAZA APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	10 FEBRUARY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs of the proceeding.

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 1993 OF 2003

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

JUDGE:	EMMETT J
DATE:	10 FEBRUARY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of India.  He arrived in Australia on 14 March 2001 and applied for a protection visa under the Migration Act 1958 (Cth) (‘the Act’) on 26 April 2001. A delegate of the respondent, the Minister for Immigration & Multicultural & Indigenous Affairs (‘the Minister’), refused the application, and following an application for review of that decision by the Refugee Review Tribunal (‘the Tribunal’), the Tribunal affirmed the decision. The applicant then sought judicial review of the Tribunal’s decision, by the Federal Magistrates Court. On 19 February 2003 that Court dismissed the application. However, the applicant then appealed to the Federal Court of Australia, and on 23 May 2003 the Court set aside the decision of the Tribunal and remitted the matter to the Tribunal for determination according to law.

2. The matter then came before the Tribunal differently constituted.  On 15 October 2003 the Tribunal again affirmed the decision of the delegate not to grant a protection visa.  The applicant then applied to this Court on 21 November 2003 for prerogative writ relief in respect of the decision of the Tribunal of 15 October 2003.  The applicant made written submissions and oral submissions.  The applicant was not represented by a legal practitioner and addressed the Court in English, although he had the assistance of an interpreter.  In the light of the submissions made by the applicant, it is necessary to say something about the history of his application. 

3. On 13 July 2001, the Minister’s delegate wrote to the applicant at 21 Orchard Road, Chatswood, saying:

   ‘I am writing to you about your application for Protection Visa lodged on 26 April 2001 and the interview you will have with this department.  I have made the following arrangements for the interview…it is in your interest to come to the interview…If you do not telephone me by 4.00 pm Thursday 26 July 2001 to confirm your interview, I may decide on your application for a Protection Visa without further delay, based on the information held on your file at the time.’

4. The applicant did not attend the interview or inform the Minister’s delegate that he did not intend to attend and, on 28 August 2001, the Minister’s delegate wrote again to the applicant, at the same address.  The letter of 28 August 2001 appears to have been registered.  The letter relevantly said:

   ‘I refer to your application for a Protection Visa (866) lodged on 26 April 2001. 

   The information included in this letter at Attachment A may be taken into account when a decision is made on your Protection Visa application.  The material contained herewith may lead the decision maker to reject your application.’

   Attachment A was in the following terms:

   ‘1.       You failed to attend a scheduled interview on 2 August 2001.  This may lead a decision maker to conclude that your claims are not genuine and/or that you do not have a genuine subjective fear of persecution as claimed.

   2.As you have failed to attend the scheduled interview, a decision maker may conclude that you have failed to substantiate the core claims made in your application.

   3.You claim you feared persecution from the Chota Rajan group.  Information available to me is that Chota Rajan is an underworld criminal.  Your claims indicate that you are being targeted because of criminal activity rather than for one of the Refugee Convention reasons of race, religion, nationality, membership of a particular social group or political opinion.  As such, you do not have a Refugee Convention based claim of persecution.’

5. The applicant asserted from the bar table that he had not received either of those letters.  It is curious that on 21 September 2001 he lodged an application for review with the Tribunal.  He said, from the bar table, that he lodged the application at that stage because of the delay in the making of a decision in respect of his application.  He did not offer any explanation as to why he did not raise the matter with the Department, rather than simply lodge an application to the Tribunal.  The Tribunal, in its reasons of 15 October 2003, drew the inference that the applicant had mistaken the letter of 28 August 2001 as a rejection of his application for a protection visa. 

6. In the application to the Tribunal of 21 September 2001, the applicant said, inter alia:

   ‘On my petition submitted to the Department and the details furnished by me in brief which having some more facts which I shall submit to you in detail as early as possible.’

   The applicant then went on to set out a number of claims.  It is significant, however, that in this document he acknowledged the necessity for further information.  The statement ends as follows:

   ‘I shall submit all in detail as early as possible to you.’

7. On 9 October 2001, the Minister’s delegate wrote to the applicant, again at the same address.  Again, there is evidence that the letter was registered.  The letter relevantly said:

   ‘You have been refused a Protection Visa because you do not satisfy this criterion.  The attached decision record gives the reasons for this decision.’

8. The findings and reasons as set out in the attached decision were in the following terms:

   ‘On 13 July 2001 the applicant was sent a letter advising him of a scheduled interview in connection with his Protection Visa application that was to take place on 2 August 2001…The applicant did not present for the scheduled interview or provide any reason why he did not attend. 

   On 28 August 2001 the applicant was given another opportunity to substantiate his claims by way of a letter…in which he was advised that his failure to attend the scheduled interview may lead a decision maker to conclude that his claims are not genuine and/or that he does not have a subjective fear of persecution as claimed.  He was also advised that as he failed to attend the scheduled interview a decision maker may conclude that he has failed to substantiate the core claims in his application. 

   As the applicant failed to attend the scheduled interview I have been unable to test whether the applicant's claims are genuine and that he has a subjective fear of persecution as claimed. 

   Furthermore, regardless of the country information that is relevant to this case, I am unable to reach a positive finding without the applicant having substantiated his claims at an interview…The applicant was given an opportunity to substantiate his claims both at interview and in writing but has not done so.  I am therefore not able to reach a positive finding on this case.’

9. On 2 November 2001, the applicant lodged a further application for review with the Tribunal.  That was supported by a six-page submission, also dated 2 November 2001.  In the form of application, the applicant, in addition to referring to the attached submission, said:

   ‘As I am expecting to receive more material information on my application which may take some more time which I will furnish to your office eventually.’

   Again, that signifies a recognition on the part of the applicant that some further material was required in order to substantiate his claims. 

10. The applicant attended an interview with the Tribunal.  In its reasons of 15 October 2003, the Tribunal referred to the absence of substantiating evidence in the context of explaining inconsistencies.  The Tribunal said:

    ‘At the hearing before me, he gave several reasons for not being able to produce any evidence whatsoever to support his claims.  One was that he thought he could obtain documents from his previous employer but a friend working in the travel industry told him that his most recent ex-boss was still being telephoned and asked about him.  Yet later in the hearing he claimed he was told that the ex-boss had been attacked and his home burned, and he had fled to the UK.  As, according to his evidence, he had only one boss since the murder of his MD, there is a clear contradiction between these two claims.’

11. One of the complaints by the applicant concerning the Tribunal’s reasons is that the Tribunal misunderstood his evidence insofar as the Tribunal thought that there was only one individual involved.  The applicant asserted from the Bar table that he had, in fact, intended to refer to two different people, and therefore there was no inconsistency as the Tribunal believed.  I shall come back to that issue in due course.  However, the significance of the reference is that the Tribunal made it clear to the applicant that it was concerned about the absence of evidence to support his claims.

12. In the course of the hearing before me, the applicant said that he has asked for more time in order to obtain documents from India.  Having regard to the earlier history to which I have referred, it must have been apparent to the applicant that he would be required to produce some substantiation for this claims.  Yet in the time that he had from August 2001 until the interview with the Tribunal in 2003, he had not taken steps to obtain the further material to substantiate his claim, which he must have understood was required.

13. The applicant’s contention is that the Tribunal committed jurisdictional error in a number of respects.  First, he said that the Tribunal misunderstood the claims made in his application.  No particulars were furnished of the misunderstanding of the claims. 

14. Secondly, he said the Tribunal made a jurisdictional error by asking the wrong questions.  The particularisation of that assertion indicates a misapprehension of the notion of asking the wrong question.  At one stage, according to its reasons, the Tribunal member asked the applicant how it was that gang members, who he claimed attacked him on three occasions, had not killed him.  He replied that he was not sure; he might just have been lucky, or else they may have hoped to get information from him.  The Tribunal asked whether, when he was attacked, his assailant sought information.  He said that they asked for details about the actions and activities of the managing director of his employer, his ‘boss’).  The applicant’s complaint is that the Tribunal, in asking the question why they did not kill him, was asking a wrong question.  However, the applicant did not advance a submission that the Tribunal addressed the wrong legal question; namely, whether or not the applicant was a person to whom Australia owed protection obligations under the Convention.

15. The applicant also referred to a number of allegedly mistaken conclusions concerning his claim.  These all seem to me to be instances of the applicant seeking to have the Court substitute its own findings in lieu of the findings of the Tribunal.  Thus, the applicant says, in his written submissions, that, when considering the threats against him from the underworld gang, the Tribunal reached a mistaken conclusion that had the underworld gang wanted to interrogate him, they could readily have done so on each of the three occasions of the alleged attacks.  The applicant says that it was a clear prejudice and a mistaken conclusion by the Tribunal, as no one could predict the intentions and the way in which underworld threats and attacks might occur.  The applicant said that the Tribunal reached another mistaken conclusion, that ‘between attacks, the underworld gang has taken year[s]’. 

16. It is desirable to say something more about the applicant’s claims and the findings made by the Tribunal.  In his primary application for a visa, the applicant claimed that in his last job, the managing director of his employer, to whom he was personal assistant, was shot dead by members of the Chota Rajan underworld gang.  He claimed that he was targeted by the gang because he knew about the managing director’s affairs and business secrets.  He said that he came to Australia for protection from the gang who he feared would kill him.

17. Ultimately, he claimed that his problems stemmed from several sources.  He feared harm from the underworld gang, and also because he was actively involved in a Muslim community group.  He asserted that the criminal gang had links with the Hindu government and Hindu groups, and that when he sought protection for his Muslim group, that led to more problems.  He said that he was threatened, not only by the Chota Rajan gang, but also by the Dawood Ibrahim gang.  He said that these gangs had links everywhere, and wherever he travelled, he had problems with local gangs.

18. The Tribunal accepted that the applicant is an Indian national, and that he worked in the travel industry, as he claimed.  It also accepted that there is a history of Hindu-Muslim enmity and violence in India, that organised crime is endemic in India and that there are several criminal gangs in Mumbai, including the Chota Rajan and Dawood Ibrahim gangs.  However, the Tribunal had considerable difficulty with the applicant’s credibility.  The Tribunal considered that the applicant presented additional or expanded claims at every stage of his application for a protection visa.  First, in the review application lodged before a decision had been made by the delegate, then in the second review application, then at the first hearing before the Tribunal and then at the second hearing before the Tribunal. 

19. Thus, in the primary application, the claim was that the applicant was targeted by the criminal gang who had murdered his managing director.  In the first review application, he made further claims that he was actively involved in ‘religious activities’ and was a member of Muslim organisations, and that he faced threats from various Hindu organisations.  In the second review application his claims were expanded to include claims that, when he moved to Mumbai, in his spare time he was involved as a committee member of a Muslim organisation involved in cultural and spiritual activities.  He claimed that Hindu groups targeted the organisation, resulting in several Hindu-Muslim clashes in which he was seriously injured and hospitalised. 

20. At the first hearing before a different Tribunal member, the applicant claimed he was harassed and threatened by a Hindu neighbour in his housing complex because of a dispute over an access road.  He claimed his home is now vacant because there had been so much harassment that he had been unable to rent it out. 

21. At the second hearing his new claim was that he was threatened not only by the Chota Rajan gang but also by the Dawood Ibrahim gang.  He claimed a friend working in the travel industry told him that his most recent previous employer was still being telephoned and asked about him.  He claimed his home in Calicut has been damaged and cannot be rented, and neighbours had reported that strangers had appeared there, presumably looking for him.

22. The Tribunal found it implausible, given the applicant’s claimed fear for his life, that he would not have provided a detailed statement of all the incidents and circumstances contributing to his fear in his initial application.  Specifically, the Tribunal was unable to accept that the applicant would not have mentioned in his primary application that he was actively involved in ‘religious activities’ and was a member of Muslim organisations, as a consequence of which he faced threats from Hindu organisations.  The Tribunal also found it unlikely, if the facts were true, that the applicant would not have mentioned that there had been several Hindu-Muslim clashes in which the applicant had been seriously injured and hospitalised. 

23. The Tribunal concluded that the progressively new claims made on each occasion were inventions aimed at fortifying the applicant’s case.  The Tribunal also referred to inconsistencies, anomalies and implausibilities in the evidence of the applicant.  I have already referred to one of those concerning whether there were one or two individuals to whom the applicant was referring as persons who might be able to give him information.  However, there were other matters upon which the Tribunal based its conclusion that the applicant’s evidence was implausible.  He claimed he was injured three times by the Chota Rajan gang.  He claimed the first attack occurred in late 1990 or early 1991; that the second attack took place in 1992; and that the third attack was in 1994. 

24. The Tribunal did not accept the applicant’s claim, when asked how it was that he was not killed in these attacks, that he might just have been lucky.  The Tribunal found it implausible, and did not accept that if a major crime gang like Chota Rajan were after him, they would have failed to kill him in three attacks.  The Tribunal also found implausible, and did not accept, that if the gang were after him, they would have waited one to two years between attacks, bearing in mind that the applicant does not claim to have taken any particular precautions for his personal security until after the third attack.

25. On the basis of the evidence before it and of the progressively new claims made on each occasion the Tribunal was unable to accept the applicant as a credible witness, and was therefore unable to accept that the applicant was targeted by a gang, even if the managing director in his first job was murdered by that gang.  The Tribunal did not accept that the applicant suffered three major injuries at the gang’s hands.  The Tribunal said that, even if it accepted that the applicant had travelled around India for a year, it did not accept that he was threatened and harassed by the gang’s confederates or by Hindu organisations during that time.

26. Thus, the Tribunal’s decision is one based on factual findings concerning the credibility of the applicant.  The Tribunal set out in some detail its concern at the progressive expansion of the applicant’s claims on every occasion when he had an opportunity.  The conclusion by the Tribunal, that if the underworld gang wanted to interrogate him, they could readily have done so on all three occasions, is a conclusion of fact, albeit based on inferences.  The fact that the conclusion is wrong does not constitute jurisdictional error, assuming that such a conclusion was wrong.  The fact that there were years between the attacks is a matter to which the Tribunal was entitled to have regard in assessing the credibility of the claims.

27. The only additional error to which attention was drawn by the applicant was a statement in the Tribunal’s reasons that the Tribunal asked whether the applicant had considered relocation.  The response was that he did not think it was possible.  The Tribunal then stated that according to the applicant:

    ‘the government circulated information about him all over India.  He tried to relocate but failed.’

28. The applicant pointed out that his assertion was not that the Government circulated information about him, but that Hindus circulated information about him.  Given that there might have been a misunderstanding on the part of the Tribunal as to the applicant’s evidence, it does not appear to me to be a matter that was critical.  The important fact is that the Tribunal rejected the applicant’s contention that he had tried to relocate but failed.  The Tribunal found it implausible that, in a country of over a billion people of India’s size, the applicant could be located by people to whom he was a complete stranger and without any information as to his likely whereabouts.

1. I am not persuaded by any of the submissions on behalf of the applicant that there was any error on the part of the Tribunal that would constitute jurisdictional error such that the decision was not a decision made under the Act. It follows, in my view, that the decision of the Tribunal was a privative clause decision within the meaning of s 474(2) of the Act. Accordingly, under s 474(1), the decision is not capable of challenge, appeal, or review in this Court and the application should be dismissed with costs.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:            7 April 2004

Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr T. Reilly
Solicitor for the Respondent:	Mr R. White
Date of Hearing:	10 February 2004
Date of Judgment:	10 February 2004