NAZV v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1343

FEDERAL COURT OF AUSTRALIA

NAZV v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1343

MIGRATION – no point of principle

Migration Act 1958 (Cth)

NAZV v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 42 OF 2004

MOORE J
SYDNEY

19 OCTOBER 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 42 OF 2004

BETWEEN:	NAZV APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	19 OCTOBER 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	NSD 42 OF 2004

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

JUDGE:	MOORE J
DATE:	19 OCTOBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. On 29 May 2003 the applicant and his wife arrived in Australia.  They claimed to be citizens of India.  The applicant applied for a protection visa on 24 June 2003.  A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refused to grant the visa on 30 June 2003.  On 23 July 2003 the applicant sought a review of that decision by the Refugee Review Tribunal ("the Tribunal").  The Tribunal affirmed the decision refusing to grant the visa on 20 November 2003. The applicant now seeks judicial review of the Tribunal's decision. 

   Background

2. The applicant is an Indian of the Hindu religion.  He travelled to Australia legally on an Indian passport in his own name with a valid visa.  He has a 13 year old son who is still in India.

3. The applicant's claims can be summarised as follows.  He claimed to have suffered persecution in the past "from police corruption in Gandhi Nagar" and feared future persecution for the same reason.  He claimed that effective protection was not available to him because it was the police who were persecuting him. 

4. Before leaving India the applicant ran a grocery shop.  One of his regular customers was a police constable who bought goods on credit.  He obtained Rs 6000 (approximately A$180) worth of groceries on credit.  When the applicant demanded payment of the bill the officer swore at him and said "I am in the police department, if you [keep] asking for money I'll put you behind bars and you will have to stop your business.  Your kid and family will suffer a lot."  The remainder of the applicant's claims are set out conveniently by the Tribunal:

   The Applicant continued to ask for his money and the police officer bashed the applicant saying, "I will send you to prison on a false liquor or drug case."  This incident occurred in the first week of December 2002. 

   After this particular incident the Applicant became very frightened.  He did not know to whom he could turn for help.  Being neither well educated, rich and not knowing any influential people the Applicant began to suffer from stress.  However, he had to continue to run his shop to feed his family.

   On 2 February 2003 the police constable came to the Applicant's shop with several strong men.  The police officer asked for groceries for himself and also for the men.  When asked to pay for the groceries "up front" the police officer and the men used bad language and threatened to kill the Applicant.  A heated argument followed.  The men left.

   On 15 February 2003 the Applicant was returning to his shop on a bicycle.  The police officer was in a private jeep.  The police officer deliberately struck the Applicant's bicycle with the jeep.  The Applicant fell off the bicycle.  The Applicant was not badly injured and ran home leaving his bicycle on the roadway.  The very same night the Applicant received some telephone calls from an unknown person.  The caller threatened to kill the Applicant and kidnap his wife.

   Although he felt nervous and insecure the Applicant had to keep his shop open.  The calls increased to threatening calls once or twice a day.  The applicant was warned not to leave the area or discuss the situation with anyone else.  The caller said that he would follow the Applicant wherever he went in India.

   The applicant claimed he believed there was nowhere in India safe for him and that he and his wife must leave India to find a safe place to live.

   The Tribunal's Decision

5. The applicant chose not to appear at a scheduled hearing to give oral evidence to the Tribunal despite being advised that the Tribunal would be unable to make a decision in his favour on the material before it. In its reasons for decision, the Tribunal indicated it was prepared to accept that the applicant had been the proprietor of a grocery business in Gandhi Nagar for several years before coming to Australia.  The Tribunal was also prepared to accept that from November 2002 until February 2003 the applicant was subject to extortion and threats of violence from a particular police officer and his "cronies".  However, the Tribunal went on to say:

   In the absence of an opportunity to discuss his claims with him and because of the very general nature of the claims and the lack of any detailed particulars with respect to them I am not prepared to accept:

   -That the Applicant received threatening telephone calls from terrorist gangs

   -That he received threatening calls once or twice each day;

   -That the Applicant was warned not to leave the area; or

   -That the police officer who refused to pay for food supplied by the Applicant or any other person informed the Applicant that he would be followed wherever he went in India.

6. In essence, the Tribunal found that the reason for any harm which might constitute persecution suffered or feared by the applicant was the result of "personal greed" of the "corrupt police officer and some of his cronies".  The Tribunal said there was no evidence to satisfy it that the police officer and his cronies were motivated by a desire to persecute the applicant and his family because of their race, religion, nationality, membership of a particular social group or political opinion.  The Tribunal was thereby indicating that there was no evidence to support a conclusion that any persecution was for a Convention reason.  That conclusion effectively disposed of the application and adversely to the applicant.

7. However, the Tribunal went on to discuss, perhaps unnecessarily, some of the implications and aspects of the persecutory conduct.  It pointed out that the applicant had not reported the mistreatment he was suffering to senior police and that there could not be a failure of state protection where the government has not had the opportunity to respond to a form of harm where protection might reasonably have been forthcoming.

8. The Tribunal discussed the official quality that is required of the persecution feared – that is "in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality" and noted that "purely private or sectional persecution that does not implicate the government" is not contemplated by the Convention. The Tribunal was satisfied that the government did not condone police corruption and that protection was reasonably available in respect of extortion and violence by corrupt police officers.  The Tribunal found no evidence to suggest that the applicant would not receive the same protection that any other citizen in Gujarat would.

   Grounds of Review

9. The application for judicial review filed by the applicant appeared to allege that the Tribunal failed to accord the applicant procedural fairness, did not act in good faith when making the decision and that the decision was not reasonably capable of reference to the decision making power of the decision maker.  Annexed to the application was a document which might be viewed, though very generously, as particulars of the second ground just identified.

10. The matter was fixed for hearing on 31 August 2004.  In the week preceding the scheduled hearing date, the applicant wrote to the Court seeking an adjournment on the basis that he was too ill to attend.  He ultimately appeared.  However it emerged that he had been legally represented until shortly before the hearing.  He appeared for himself with the aid of interpreter.  At the hearing, he was provided with a 11 page written submissions in English from the Minister.  In those circumstances I indicated the applicant could file further written submissions on or before 24 September 2004.  I then intended to give judgment on 8 October 2004 but could not do so because I was not sitting at that time.  No written submissions have been filed by the applicant.

11. In my opinion, the approach of the Tribunal to the claims of the applicant was unexceptionable.  No error is evident in the Tribunal's consideration of the material before it let alone an error which might constitute jurisdictional error.  The application should be dismissed with costs.

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

Associate:

Dated:             19 October 2004

The Applicant appeared in person
Counsel for the Respondent:	M A Wigney
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	31 August 2004
Date of Judgment:	19 October 2004