NAZK v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCAFC 244

FEDERAL COURT OF AUSTRALIA

NAZK v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCAFC 244

NAZK v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N393 of 2004

WILCOX, MADGWICK & DOWNES JJ
18 AUGUST 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N393 of 2004

BETWEEN:	NAZK APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	WILCOX, MADGWICK & DOWNES JJ
DATE OF ORDER:	18 AUGUST 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal is dismissed with 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	N393 of 2004

BETWEEN:	NAZK APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	WILCOX, MADGWICK & DOWNES JJ
DATE:	18 AUGUST 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. I agree with Madgwick J.  As he has indicated, the written submission identified some grounds of appeal which, if made out, would have indicated jurisdictional error by the Refugee Review Tribunal (‘the Tribunal’).  Some of the language in the written submission was appropriate for such grounds; for example, a claim made more than once that the Tribunal did not consider some particular matter or particular documents.  However, when asked about this, the appellant indicated quite clearly that the only basis for his claim was that the Tribunal did not believe his evidence.  The fact that a particular person’s evidence is not believed does not, of course, mean that the case put before the Tribunal was not considered.

2. I see no basis for imputing jurisdictional error to the Tribunal.  Accordingly, I share the view of Madgwick J that the appeal should be dismissed.

3. The order of the Court will be that the appeal be dismissed with costs.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:            31 August 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N393 of 2004

BETWEEN:	NAZK APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	WILCOX, MADGWICK & DOWNES JJ
DATE:	18 AUGUST 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

MADGWICK J:

1. The appellant appeals from a judgment of Lindgren J.  His Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’).  The Tribunal had affirmed a decision of a delegate of the respondent Minister to refuse to grant the appellant a protection visa.  The appellant’s claim was that he feared persecution by reason of his political opinion in India, his country of nationality.  He claimed to have been a leading member and activist in the Communist Party of India (Marxist-Leninist).  The members of that party are more commonly referred to as Naxalites.  He claimed to have been arrested and detained, and on occasions tortured, on account of his political opinion.  He said that had happened eight times since 1992 in a variety of circumstances. He claimed to fear further such persecution if returned to India.

2. The Tribunal member concerned profoundly disbelieved the appellant.  The Tribunal member did not accept his claims of past persecution.  The Tribunal member gave extensive reasons for his adverse credit finding.  They included that the appellant had demonstrated surprisingly little knowledge of the Naxalites and of communism and socialism generally for one who claimed to have been so politically active in such a cause; that the appellant had not submitted any documentation that would have been expected to support his claims, even though the Tribunal had requested that he do so and had been given ample time; that the appellant had been allowed legally to leave India on a passport in his own name despite claiming to be in fear of arrest for very serious charges, and that, during a visit to the Netherlands in 2002, the appellant had failed to claim refugee protection there but instead had voluntarily returned to his homeland.  The Tribunal noted that the appellant had made new claims for the first time at the hearing before the Tribunal and had contradicted some of his earlier written claims. 

3. The Tribunal also dilated upon what it found to be the appellant’s unimpressive demeanour and why such demeanour could and should be taken into account against him.  The learned primary Judge was, one may infer, less than impressed with this emphasis on the appellant’s demeanour as many judges might be. 

4. There was, however, no adequate particularisation of the jurisdictional grounds generally stated before his Honour and it appears that in written submissions the appellant did little more than make factual attacks on the Tribunal’s findings.

5. His Honour concluded there were simply so many aspects of implausibility and inconsistency referred to by the Member that he had no hesitation in thinking that the Member was entitled in law to reach the conclusion adverse to the appellant’s credit which the Member did in fact reach.

6. Before us, the appellant was again unrepresented but it is clear that he had some assistance from a person with at least some degree of legal knowledge in framing the grounds of his appeal which, in broad generality, instanced a number of alleged bases by which the Tribunal Member had supposedly committed jurisdictional error. The written submissions repeated the grounds of appeal and went on to make a number of further claims in very general terms.  Many of these, if they had been made good, would bespeak jurisdictional error. 

7. However, none of the generalised claims was made good. 

8. In answers to questions from the presiding Judge in the course of submissions it was quite clear that the appellant’s real complaint is that the Tribunal did not believe him.  Like the learned primary Judge, it seems to me that the Tribunal member’s adverse credit findings were
   
   

   in the circumstances of the case well open to him.  It follows that the judgment that was appealed from should be affirmed and the appeal should be dismissed.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:            31 August 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N393 of 2004

BETWEEN:	NAZK APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	WILCOX, MADGWICK & DOWNES JJ
DATE:	18 AUGUST 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

DOWNES J:

1. I agree with the presiding Judge and Madgwick J. 

I certify that the preceding numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Downes.

Associate:

Dated:            31 August 2004

The Applicant appeared in person.
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	18 August 2004
Date of Judgment:	18 August 2004