NAZK v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 270

FEDERAL COURT OF AUSTRALIA

NAZK v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 270

NAZK v MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

N 17 of 2004

LINDGREN J
4 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 17 OF 2004

BETWEEN:	NAZK APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	4 MARCH 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s 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 17 OF 2004

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

JUDGE:	LINDGREN J
DATE:	4 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of India who arrived in Australia on 17 November 2002.  On 30 December 2002 he lodged an application for a Protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’) under the Migration Act 1958 (Cth) (‘the Act’).

2. On 27 February 2003 a delegate of the respondent Minister (respectively ‘the Delegate’ and ‘the Minister’) refused to grant the visa.  On 26 March 2003 the applicant applied to the Refugee Review Tribunal (‘RRT’) for review of the Delegate’s decision.

3. On 18 November 2003 the RRT decided to affirm the Delegate’s decision.  The RRT's decision was handed down on 11 December 2003.

4. The applicant applies to the Court under s 39B of the Judiciary Act 1903 (Cth) for relief in respect of the RRT’s decision. He seeks orders in the nature of certiorari, prohibition and mandamus, as well as a declaration that the RRT’s decision was made in excess of jurisdiction and an order that the Minister pay the applicant’s costs.

5. The grounds of the application are set out in the originating process as follows: 

   ‘The applicant seeks relief under Section 39B of the Judiciary Act 1903 on the grounds that the Tribunal:

   1.The Decision Maker had identified wrong issue, asking himself a wrong question, ignoring relevant material, making erroneous finding and reaching a mistaken conclusion, thereby committing an error of law constituting jurisdictional error.

   2.The Decision Maker has exceeded his purported exercise of power in a way, thereby committing an error of law, thereby a constructive failure to exercise jurisdiction along with procedural fairness.

   3.The Decision Maker was not acting in good faith in making the decision.’

6. The grounds of the original application for the visa were contained in a statutory declaration by the applicant dated 19 December 2002.  In short, the applicant claimed to have a well-founded fear of persecution on the grounds of his actual or imputed political opinion, which arose out of his membership of, and support for, the ‘Naxalites’ –a political organisation in India, the tenets of which pertain to elements of Maoism, Marxism and Socialism. 

7. In assessing the applicant’s claims, the RRT had before it the Department’s file and independent country information relating, in particular, to the Naxalites.  Of considerable importance in the RRT’s reasons for decision was the nature of the oral testimony given by the applicant before the RRT.  The Member put to the applicant numerous questions which were clearly directed to testing the credibility and consistency of the applicant’s claims.

8. In the statutory declaration to which I have referred the applicant claimed to have joined the Communist Party of India (Marxist-Leninist) in 1991, and to have suffered persecutory acts from January 1992 until he left India on 25 October 2002.  His account included various forms of physical attack over the period of some ten years.  In addition his account included claims of a number of charges brought against him by the police, which were said to be still pending.  Finally, his claims included claims that he was enabled to escape from the police and from “Rowdy elements” by his Naxalite associates.

9. In his application for the visa the applicant foreshadowed the supply of documentation in support of his claims.  He wrote to the RRT on 14 April 2003 stating that he would produce further papers within two months.  No supporting documentation was forthcoming.  On 28 July the applicant sought a further three months.  He did not produce the foreshadowed documents by the time of the hearing before the RRT on 23 October 2003.

10. In the ‘Finding and Reasons’ section of the RRT’s reasons for decision, the RRT said that it found the applicant not to be a credible witness, and added:

    ‘Many of the key aspects of his testimony and his claims were simply not plausible.  Some of his key claims were vague, general or not sufficiently detailed to be believable, and some of his evidence was evasive.  There were a number of material contradictions which were not explained to the Tribunal’s satisfaction.  Some of his claims were at odds with the independent country information, and some of his demeanour casts doubt on his credibility.  There were a number of recent inventions.  In these circumstances, for the following reasons the Tribunal finds that his claims are not credible and does not accept most of them.’

11. The RRT did, however, accept the following claims as plausible:

    ‘1.       The applicant was born on 8 November 1956 in Chennai;

    2.He left India legally, when he departed on a valid passport issued on 16 July 2002, and he had no difficulties obtaining this travel document;

    3.The applicant was issued with an Indian passport previously in 1983;

    4.He speaks, reads and writes Tamil and English, and he speaks Telegu;

    5.He lived at the same address in Chennai from March 1992 until November 2002;

    6.His wife, two sons, mother, father and four sisters live in India;

    7.He has completed 13 years of education, including two years of tertiary studies; and

    8.His record of employment and travel outside India are accurately set forth in the protection visa application.’

12. The RRT continued, however, by identifying the reasons why it did not accept any of the other claims presented by the applicant.

13. I need not identify the various implausibilities and inconsistencies referred to by the RRT.  It suffices to say that the account of the questioning of the applicant by the Member, as well as the statement of his reasons for the non-acceptance of the applicant’s claims, is quite detailed. 

14. The applicant has provided to this Court written submissions which he states were prepared with the assistance of a non-lawyer friend.  In the written submissions the applicant attacks the reasons given by the RRT for not finding his claims plausible.  The written submissions take issue with four particular matters identified by the RRT.  However the most that can be said of those four matters is that different views may have been available as to whether they pointed to the applicant’s claims not being credible.  For example, the Member referred to the demeanour of the applicant and the applicant suggests that there are other reasons explaining his demeanour.  What is more important, in my view, is the point made by Mr Reilly, of counsel for the Minister, in his written submissions in the following terms:

    ‘The Tribunal noted that the Applicant displayed very little knowledge of the Naxalites and communism generally during the hearing, had not submitted any documentation to support his claims despite being requested to do so and given ample time, was able to leave India legally on his own passport despite claiming to be in fear of arrest, had not claimed protection in the Netherlands when he had visited there in 2002 and rather voluntarily returned to India, and that his demeanour during the hearing suggested he was being untruthful.  The Tribunal also noted that the Applicant had made new claims at the hearing, and contradicted some of his written claims.’

15. No doubt it is true, as the applicant says in his written submissions, that a mere omission to produce a document, taken in isolation, does not mean that an applicant is unreliable.  But bearing in mind that the applicant had made so much of the foreshadowed production of documents, his failure to produce any was certainly one matter to be weighed in the balance when assessing his credibility.

16. There are simply so many aspects of implausibility and inconsistency, referred to by the Member that I have no hesitation in thinking that the Member was entitled in law to reach the conclusion adverse to the applicant’s credit, which the Member did in fact reach. 

17. There is no substance in any of the three grounds set out at [5] above. No jurisdictional error is established and the application must be dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             18 March 2004

The Applicant appeared in person:
Counsel for the Respondent:	Mr Tim Reilly
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	4 March 2004
Date of Judgment:	4 March 2004