NBAP v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 318

FEDERAL COURT OF AUSTRALIA

NBAP v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 318

NBAP v MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

N 98 of 2004

LINDGREN J
19 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 98 OF 2004

BETWEEN:	NBAP APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	19 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 98 OF 2004

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

JUDGE:	LINDGREN J
DATE:	19 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant applies for relief in respect of a decision of the Refugee Review Tribunal (‘the RRT’). The application is made under s 39B of the Judiciary Act 1903 (Cth). The decision of the RRT was made on 18 December 2003 and handed down on 15 January 2004. By it, the RRT affirmed a decision of a delegate of the respondent (respectively ‘the Delegate’ and ‘the Minister’) not to grant the applicant a protection visa.

   BACKGROUND FACTS

2. Although I have referred to ‘the applicant’ and will continue to do so, there were two applicants before the RRT, namely the applicant and his wife.  The RRT noted that only the husband had made specific claims under the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees, and that the wife relied on her membership in his family.  For convenience, the RRT referred to the husband as ‘the applicant’.  He alone has brought this present proceeding.  I will use the expression ‘the applicant’, to refer to him, whether as applicant in this proceeding or at the earlier stages.

3. The applicant was born in India.  As noted, he is married and his spouse was included in his protection visa application.  The couple have no children.  The applicant speaks, reads and writes Bengali and English.  He has had a Bengali interpreter available to him on the hearing today, but has chosen not to use the services of the interpreter, because he feels that he is sufficiently fluent in English.  However, it was made clear to him that if he had any difficulty at any time understanding me or counsel for the Minister, he should so indicate, in order that the interpreter could assist him.

4. The applicant is of Bengali ethnicity and his religion is Hindu.

5. The applicant and his wife claimed to be citizens of India.  They arrived in Australia on 9 April 2003.  On 22 April 2003 they lodged an application for Protection (Class XA) visas with the Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’) under the Migration Act 1958 (Cth). On 20 June 2003 the Delegate refused to grant the visas and on 9 July 2003 the applicant and his wife applied to the RRT for review of that decision. The RRT conducted a hearing on 16 December 2003. As noted, it made its decision two days later on 18 December 2003 and handed down that decision on 15 January 2004.

6. The applicant lived at the same residential address in India from April 1993 until February 2002, according to the application for the visa.  In his application the applicant described his occupation as that of ‘computer engineer’.  He claimed to have been employed in India from March 1994 until January 2002 in electronic and computer positions.  He has completed 17 years of education, including tertiary education.

7. The applicant has an Indian passport which was issued on 19 March 1997 and is valid until 2007.  He departed from India on 25 July 2002 travelling to New Zealand on a student visa which was issued on 19 July 2002.  He arrived in New Zealand on 26 July 2002 and was granted a permit to remain in New Zealand until 28 February 2003.  He was granted a second student visa on 28 January 2003 which was valid until 31 July 2003.

8. As noted earlier, the applicant arrived in Australia on 9 April 2003.  He arrived here on a visitor’s visa granted on 28 March 2003 in Auckland.  The visa was valid for two weeks from the date of arrival, that is, until 23 April 2003.  On the day before the expiry of that period, 22 April 2003, the applicant applied for the Protection visa.  He did not apply for protection in New Zealand – a matter which was taken up with him by the RRT.

9. In his Protection visa application the applicant said that he departed from India lawfully and had no difficulty in obtaining his travel documentation.

10. The applicant claimed to fear persecution in India because of his political opinion.  He claimed, in his protection visa application, to fear political harassment and intimidation from the political party ‘CPM’.  He said that he was ‘a dedicated and most active youth leader of the opposition party ‘Trinamul’’.

11. The applicant was assisted in preparing his application for the Protection visa by Little n' Bons’ Associates, Migration and Language Service.  In stating in his application why he left India, the applicant did not state his reasons in much detail, although he made it clear that his claim was as I have described it.  He stated:

    ‘I was physically assaulted and harassed by the CPM hooligans and their associate terrorist.  In fact my life became unbearable in India and I found myself very vulnerable in India.  Therefore, finding no other alternative I was compelled to leave India for a sanctuary.’

    He added that he had gone to New Zealand as a student as he found that ‘easy to achieve and afford’.  He said that in New Zealand, ‘due to breach of the student visa condition’, his visa was under threat which could have resulted in his being sent back to India.  He said it was for that reason that he left New Zealand.

    SUPPORTING DOCUMENTS

12. An important issue in the case has been the applicant’s complaint that the RRT refused to allow him more time to obtain supporting documents.  For this reason I will refer to the course of events relating, in particular, to that issue.

13. The first matter to note is that in the form of application for the visa, the following printed material appears:

    ‘You should, wherever possible, provide dates, locations etc. in respect of any events/occurrences to which you refer.

    You should provide any evidence that you have which supports your claims.

    Your claims will be assessed against the definition of a refugee set out in the United Nations Convention.  It is important that you include all details as a decision may be taken based on the information provided in your application only.’

14. In a letter dated 22 April 2003 from the applicant’s migration agents to the Department, enclosing the application for the visa, the migration agents stated:

    ‘He [the applicant] has also advised me that he will forward his statement, detailing his claim in the light of UN refugee convention, as soon as possible.  He said he is currently endeavouring some important documents from India associated to his refugee claim. [sic]

    I therefore request you to grant my client a reasonable period of time to forward his full claim to the department, and not to take any adverse decision on his application until the same is forwarded.’

15. On 9 May 2003 the Department wrote to the applicant a letter acknowledging receipt of his application for the Protection visa.  The letter included the following:

    ‘If you have any more information relevant to your application, you may give it, in writing, to DIMIA any time before a decision is made on your application and it will be taken into account in deciding your application.’

16. On 20 June 2003 the Department wrote to the applicant advising him that his application for a Protection visa had been refused and enclosing a ‘Decision Record’ giving the reasons for the decision.  Included in an attachment to the Decision Record, entitled “Attachment [A]: Assessment of Protection Obligations”, was the following:

    ‘5.2.1   The applicant has provided no evidence at all to support his claims.  According to the applicant’s adviser, the applicant would be providing a further statement and supporting documentation “as soon as possible”...  However, he has failed to do so up to this date, almost two months after he lodged this application.  I do not believe it is reasonable to delay any further making a decision on this application, pending the receipt of such unknown material at some unspecified future time.’

17. This paragraph from the Decision Record is to be read as alerting the applicant to the need to supply any supporting documentation to the RRT in due course. 

18. The applicant lodged with the RRT his application for review of the Delegate’s decision on 9 July 2003.  Again, he was represented by the same migration agents.  On 30 October 2003 the RRT wrote a lengthy letter to the applicant requesting him to provide additional information dealing with six issues identified in the letter. 

19. On 5 November 2003 the RRT wrote to the applicant advising him that there would be a hearing on 16 December 2003.

20. On 9 December 2003 the same migration agents wrote to the RRT enclosing a copy of a statement giving the applicant’s response to the questions which the RRT had put to him.  In their covering letter, the agents stated:

    ‘[The applicant] believes that his claim completely fits within the refugee convention.  In the same statement he has also stated the reason of his unwillingness to return to India.

    He has instructed us that he would like explore more of it with the tribunal in the forthcoming hearing on 16/12/2003.’

21. The statement enclosed comprised three pages.  In neither his migration agent’s letter nor in the statement did the applicant seek more time in order to provide supporting documents to the RRT.  He does, however, make reference to not having enough evidence at that time to support his claim, and to trying to obtain the evidence.

22. The RRT conducted its hearing on 16 December.  The applicant asserts that at the hearing he asked the Member for more time to permit him to obtain documents, and was refused.  He states that the Member said she would proceed to give her decision on the basis of the existing evidence before the Tribunal, including, of course, the applicant’s testimony on the hearing.

23. There is no ‘evidence’ before the Court of the exchange which took place between the applicant and the Member on the hearing, but Mr Bromwich of counsel for the Minister submits that even accepting the applicant’s version of what occurred on the hearing, there has been no breach of the principles of natural justice.  Counsel also refers to s 422B of the Act which took effect on 4 July 2002 and which provides that Division 4 of Part 7 of that Act is to be taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

24. I do not find it necessary to explore the effect of s 422B in the circumstances of this case because, in my opinion, the primary submission of Mr Bromwich should be accepted, namely, that accepting that the applicant asked the Member for more time and she refused it, there was not a failure to accord the applicant natural justice. 

25. The applicant had had ample opportunity to provide the documents which he said he wished to obtain.

26. On the hearing today he states that he did in fact receive one important document on 22 December 2003, that is, six days after the hearing, four days after the making of the decision, but prior to the handing down of the decision on 15 January 2004.  He states that he did not forward that document (which I have not seen) to the RRT because the Member had said that she would be proceeding to make her decision on the basis of the existing evidence.

27. The applicant submits that the Member should have allowed him, say, a further month.  That course is one which would have been open to the Member to adopt, but her choice, instead, not to allow any further time was a course open to her consistently with her observance of the requirements of natural justice.  For the sake of completeness I note that the applicant informed me that he still does not have down to this day all the documents he would wish to have, but says that he refrained from pursuing the matter further in the light of the statement the Member made to him on the hearing.

    OTHER MATTERS

28. The ‘Applicant’s Outline of Argument’ which was handed up by the applicant on the hearing today, and which he states was prepared by a lawyer who has been assisting him, deals only with the natural justice issue with which I have dealt above.

29. The application by which the applicant commenced this proceeding, however, purports to list six ‘grounds’ on which he relies.  The written submissions of counsel for the Minister in response address those six grounds.  The grounds are summarised as follows in counsel's written submissions:

    Ground 1 – absence of good faith
    Ground 2 – denial of procedural fairness
    Ground 3 – bias
    Ground 4 – failure to observe procedures
    Ground 5 – failure to consider claim against current socio-political situation in India
    Ground 6 – error in interpretation or application of the law.

30. As I have mentioned, although given the opportunity, the applicant has neither, in writing nor orally, made submissions in support of these grounds, except to the extent mentioned above in relation to the Member’s refusal of further time for the obtaining of documents.

31. It suffices to say that there is no substance in any of the six grounds.  It seems that the applicant attacks the view taken by the RRT of certain aspects of the evidence and the significance it attached to them.  A particular matter is that the RRT observed that the applicant raised for the first time on the hearing a claim that he had spent three to four months in hiding in Assam until he was discovered there by his political opponents.  The Member’s view of this particular claim was summarised by her as follows:

    ‘I am satisfied that this claim was only raised by the applicant in an attempt to bolster his claims to refugee status and that it is a fabrication.’

32. It was open to the RRT to form this adverse view in relation to the late raising of this claim.  That, of course, was not the only matter relied on by the RRT in forming an adverse view of the applicant's claims more generally. 

33. Since the applicant’s written submissions do not elaborate upon the grounds stated in his form of application, I do not think it necessary to say any more about them, than that I have considered them all and find no merit in them.

    CONCLUSION

34. For the above reasons the application should be dismissed with costs.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             26 March 2004

The Applicant appeared in person.
Counsel for the Respondent:	Mr R Bromwich
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	19 March 2004
Date of Judgment:	19 March 2004