NAZY v Minister for Immigration

[2005] FMCA 341

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAZY v MINISTER FOR IMMIGRATION [2005] FMCA 341

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of India – claim that RRT ignored relevant considerations – claim that RRT failed to give reasons – no reviewable error.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.424; 430; 475A

Applicant: NAZY

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 1016 of 2004

Judgment of: Scarlett FM

Hearing date: 10 March 2005

Date of Last Submission: 10 March 2005

Delivered at: Sydney

Delivered on: 10 March 2005

REPRESENTATION

The Applicant: Appeared in person

Counsel for the Respondent: Ms McNaughton

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. That the Application is dismissed.

2. That the Respondent is to pay the Applicant’s costs in the sum of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1016 of 2004

NAZY

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for review of a decision of the Refugee Review Tribunal. 

2. The decision was made on 18 November 2003 and handed down on

   
   

   11 December 2003. 

3. The decision of the Tribunal was to affirm the decision of the delegate of the Minister not to grant a protection visa to the applicant. 

4. The applicant is a citizen of India.  He arrived in Australia on a temporary residence visa on 6 February 2003.  On 10 February 2003 he lodged an application for a protection visa.  In that application he claimed a well-founded fear of persecution for what appears to be either a political or a religious reason.  He is a follower of the Muslim religion.

5. In a statutory declaration that was annexed to his application for a protection visa, the applicant made these claims:

   i)He was a member of the Rotary Club in Madras. He helped poor people.  He organised books for the children and provided free tutorials.  He served as a social worker to the local poor people. 

   ii)

   Some of the local political parties thought that the applicant created problems for them.  Those parties included the BJP, the RSS and the AIDMK.  The local police supported these parties.  The applicant said he was involved in communist party activities.  He organised demonstrations and processions against the AIDMK and the BJP.  On the

   
   

   18 February 2000 the police arrested him and his friends.  The police tortured him mercilessly.  The police only released Hindu people.  The applicant and his friends were sentenced under the National Security Act.  They were remanded in custody for three months.  When he was brought back to Court he was again remanded in custody for three months.  He was sent to a central jail.  When he was released from jail, no-one helped him.  His friends would not speak to him because he belonged to the Muslim community.  He looked for a new job in some other states.  He was always a noted person by the police.  They arrested him and put him in jail.  In December 2002 the applicant went to Bombay.  He worked in a shop.  The police arrested him for the demolition of the Babri Mosque.  He was refused bail.  He remained in jail for a week and then was released.  He was arrested every two weeks.  Police suspect him of supporting Muslim people who involve in violence.  The applicant says that they planned to kill him inside the jail.  He said he escaped from the jail.  His brother-in-law helped him to get a visa for Australia.  A delegate of the Minister refused a visa to the applicant.  He sought a review of that decision from the Refugee Review Tribunal.  He sent in a handwritten document to the Tribunal.  In that document he made the following claims:

   ·     That the police would arrest him a week before the commemoration of the destruction of the Babri Mosque and they would imprison him for two weeks.  He would be tortured in prison.

   ·     Whenever there is community violence or religious unrest, the police arrest him. 

   ·     He is a sincere Muslim.  He tries to help poor people with their medical needs and their educational needs.  Unfortunately Indian politicians oppose his social service.

   ·     Because of this, politicians and others abuse him and threaten him for spoiling their image. 

   ·     When his enemies tried to kill him he escaped to Australia. His father had to sell his land to finance the trip. 

   ·     He had received a phone call from his parents to say that people had gone to his brother-in-law’s house looking for him.  They made threats and they beat his brother-in-law. 

6. The Tribunal held a hearing on 6 November.  The applicant attended that hearing.  He gave oral evidence to the hearing.  At the hearing before me the applicant said that the Tribunal did not ask him any questions.  In the Tribunal decision at pages 71 and 72 of the Court Book, the Tribunal gives several examples of questions asked by the Tribunal which the applicant was able to answer. 

7. In the Tribunal decision there are quotes from independent country information.  Part of the independent country information refers to violence against Muslims.  At page 74 of the Court Book the Tribunal quotes from a report by the United States Department of State.  This document is titled “Country Reports on Human Rights Practices”.  The report referred to:

   Tension between Muslims and Hindus and to an increasing extent between Hindus and Christians. 

8. Part of the report says this: 

   Although the law provides for religious freedom, enforcement of the law was poor, particularly at the state and local levels, where the failure to deal adequately with intra-group and inter-group conflict and with local disturbances abridged the right to religious freedom.  There was significant Hindu/Muslim violence during the year.  In many cases the government response was inadequate, consisting largely of statements criticising violence against Muslims, with few efforts to hold accountable those persons responsible or to prevent such incidents from occurring. 

9. The Tribunal also quoted from the Amnesty International Annual Report on India.  This annual report was for the year 2003.  In the report there appears this quote, which appears on page 74 of the Court Book:

   Religious minorities, particularly Muslims, were increasingly targeted for abuse.  In Gujarat, Muslims were victims of massacres allegedly master-minded by nationalist groups with the connivance of state agencies. 

10. The Tribunal want on to give its findings and reasons beginning at page 75 of the Court Book.  The findings begin:

    On the basis of the available information the Tribunal finds that the applicant is a citizen of India and that he is outside that country. 

11. The Tribunal went on to say that on the basis of the available information and in the absence of any supportive evidence, the Tribunal could not accept that the applicant and others had been targeted as a consequence of their approaching the homes of leading political figures.  The Tribunal said that it did not accept that evidence because the watchman on the political figure’s residences did not even ask them for any identification. 

12. The Tribunal noted that the applicant said that he only ever saw one politician.  This person was a member of the legislative assembly. 

13. The Tribunal noted that the applicant could not even tell the Tribunal the name of the member. Consequently, the Tribunal said it could not be satisfied that this had actually happened.  Because of the significance of this event, the Tribunal thought that it was implausible that the applicant could not remember the name of the Member of Parliament. 

14. The Tribunal did not accept the applicant’s claim that in December 1999 the applicant and others were beaten up in the Rotary Club.  The Tribunal did not accept that the applicant was always a noted person because that claim was linked to his claim that this was as a result of his arrest in the year 2000. 

15. The Tribunal was not satisfied that the applicant was a member of the Communist Party of India or that he was involved in any demonstrations or rallies. 

16. The Tribunal went on to say, at page 77 of the Court Book:

    I have given regard to the independent country information cited in this decision, in particular the comments that there have been incidents of anti-Muslim violence in India. The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugee’s Convention.

17. The applicant commenced proceedings in the Federal Court by means of an application.  He filed an amended application on 23 August 2004.  The proceedings have since been transferred to the Federal Magistrates Court. 

18. In his application the applicant relies on three grounds.  The first ground is:

    That the Tribunal ignored relevant considerations (made relevant by s 424(1) Migration Act).

    That the independent country information on India before it suggests that there have been incidents of anti-Muslim violence in India.

19. The second ground is this:

    The Tribunal made express findings that it did not accept most of my written and oral evidence and no reasons were given in the Tribunal decision as to why most of my conventions claims were not believed. The Tribunal must give the reasons for its decision. It did not comply with s 430(1) of the Migration Act.

20. Three:

    I have seen my lawyer appointed by the Federal Magistrates Court and he advised me that he would send me a letter of advice and I have not received it.  I may file and serve additional particulars of the grounds once I have received his legal advice.  

21. When this application originally came before the Federal Magistrates Court, the application could not proceed.  The applicant had indicated that he required the services of an interpreter in the Tamil language.  Unfortunately, no Tamil interpreter was available.  The applicant was not legally represented.  I adjourned the matter until today and made an order for a Tamil interpreter.  Fortunately, a Tamil interpreter is available to assist the applicant today.  The applicant is not legally represented. 

22. I have asked him about his claim.  The solicitors for the respondent and their barrister have prepared written submissions.  I have read those submissions and I have satisfied myself that the applicant received a copy of them in plenty of time.  The applicant did not submit any written submissions other than his application.

23. I also heard a brief oral submission from Ms McNaughton of counsel. I have considered the matters contained in the applicant’s application. First of all, he complains that the Tribunal ignored relevant considerations. He refers to s.424 of the Migration Act. He refers to the independent country information and complains that the Tribunal ignored relevant considerations.

24. Section 424(1) says:

    In conducting the review, the Tribunal may get any information that it considers relevant.  However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision of review.

25. In this case it seems to me that the Tribunal has considered the independent country information.  There are references to independent country information and quotes from various reports on pages 72 through to 75 of the Court Book.  I quoted from two reports which the Tribunal had quoted at greater length on page 74 of the Court Book.  Those two reports referred to violence against Muslims.  I asked the applicant if he understood that a decision on factual matters was one that had to be left to the Tribunal and that it was not the role of the Court in conducting judicial review to deal with the facts.  He told me he understood that. 

26. It seems clear that the Tribunal did consider independent country information.  The Tribunal says so at page 77 of the Court Book:

    I have given regard to the independent country information cited in this decision.

27. The Tribunal refers specifically about reports of incidents of

    
    

    anti-Muslim violence in India. 

28. It appears clear to me that the Tribunal has complied with the requirement of s.424 of the Migration Act. If the Tribunal obtains independent country information, the Tribunal must have regard to it. That does not mean that the Tribunal must give that information such weight that the applicant’s claim will be accepted. All that having regard to information means is that the Tribunal must consider it.

29. Turning to the second ground; the applicant complains that the Tribunal made express findings that it did not accept most of his written and oral evidence. As I said, the applicant told the Court that he understood that this was the area of the Tribunal and not the area of the Court in conducting a review. What he did complain of was that, he said, the Tribunal did not give reasons. He referred to s.430 of the Migration Act. Section 430(1) says:

    Where the Tribunal makes its decisions on a review, the Tribunal must prepare a written statement that:

    (a)Sets out the decision of the Tribunal on the review and

    Sets out the reasons for the decision.

    Sets out the findings on any material or questions of fact.

    Refers to the evidence or any other material on which the findings of fact were based.

30. The applicant says that the Tribunal did not comply with s.430.

    
    

    Ms McNaughton of counsel for the respondent, said that it is clear from the Court Book that the Tribunal did seek to give written reasons. 

31. In pages 69 through to 72 the Tribunal covers the applicant’s evidence in great detail.  From pages 72 to 75 the Tribunal covers the independent country information.  From pages 75 through to 77 the Tribunal gives its findings and reasons.  The Tribunal in pages 75 to 77 goes to some trouble to show where the Tribunal does not accept the applicant’s evidence.  And the Tribunal appears to me to give reasons for not accepting that evidence.  The tribunal sets out the various claims that it has not accepted and then gives reasons why it does not accept each claim. 

32. The Tribunal in its decision cites a fair degree of scepticism about the plausibility of some of the applicant’s claims.  It is quite clear that the reason given by the Tribunal led to the Tribunal’s conclusion that it was not satisfied that the applicant was a refugee. 

33. To my mind, the Refugee Review Tribunal in this case has complied with s.430 of the Migration Act. It has done so for these reasons:

    a)It has prepared a written statement.

    b)The written statement sets out the Tribunal’s decision.

    c)The written statement sets out the reasons for the Tribunal’s decision. 

    d)The written statement does set out the Tribunal’s findings on material questions of fact.

    e)The statement refers to the evidence on which both findings of fact have been based. 

34. The third ground in the applicant’s application is in reality no more than a forecast that he may file additional particulars.  The applicant chose not to do so. 

35. In conclusion, I find that the Refugee Review Tribunal did comply with ss.424 and 430 of the Migration Act. I have found no evidence of any jurisdictional error. I have found no evidence of a failure to provide procedural fairness or any failure to provide natural justice.

36. Accordingly, the decision of the Refugee Review Tribunal is a privative clause decision within the meaning of s.474 of the Migration Act. There is no reviewable error. The application will be dismissed.

37. There is an application for costs.  The applicant in these proceedings has been unsuccessful and the respondent seeks an order for costs.  The applicant says he has no money and I accept that is so.  He is certainly not being asked to make an immediate payment and I accept the fact that he does not have the funds to do so.  Nevertheless that is not a ground for declining to make an order for costs where it is otherwise appropriate.  In this jurisdiction the party who is successful in litigation can usually expect to receive a costs order in their favour.  To my mind it is appropriate that I should make an order for costs.  The respondent seeks that I fix costs in the sum of $4500.  That amount is well within the range for matters of this nature, particularly taking into account the fact that the proceedings had to be adjourned when they were last before the Court.  That was through no fault of the applicant of course but it was through no fault of the respondent either.  To my mind the sum of $4500 is an appropriate figure.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  23 March 2005