NBCZ v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1515

FEDERAL COURT OF AUSTRALIA

NBCZ v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1515

NBCZ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N382 OF 2004

EMMETT J
30 AUGUST 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N382 OF 2004

BETWEEN:	NBCZ APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	30 AUGUST 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for orders nisi be dismissed.

2.The applicant pay the Minister's costs of the application.

3.Orders 1 and 2 be stayed up to and including 20 September 2004.

4.The applicant have leave to file and serve no later than 20 September 2004 a notice of motion and affidavit in support seeking orders that orders 1 and 2 be set aside, such motion to be returnable before Emmett J for hearing on 24 September 2004 at 9.30am.

5.If any such motion and affidavit is filed in accordance with Order 4, then the stay be extended up to and including 24 September 2004.

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	N382 OF 2004

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

JUDGE:	EMMETT J
DATE:	30 AUGUST 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of India.  He arrived in Australia on 6 August 2003 and on 18 September 2003 he lodged an application for a Protection Class XA Visa under the Migration Act 1958 (Cth). On 14 October 2003 a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant a protection visa. Accordingly, on 11 November 2003 the applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the delegate’s decision.

2. On 2 February 2004 the Tribunal affirmed the decision not to grant the protection visa. On 22 March 2004 the applicant commenced this proceeding by filing an application under s 39B of the Judiciary Act 1903 (Cth) seeking some form of relief in respect of the decision of the Tribunal. The applicant is unrepresented and appears in person. The matter came before me for directions on 23 April 2004. The applicant appeared in person and the Minister was represented by her solicitor. The Minister’s solicitor had prepared proposed short minutes of directions to have the matter prepared for hearing. The directions included an order that the Minister file and serve a bundle of relevant documents by 7 May 2004 and that the applicant file and serve an amended application giving complete particulars of each ground of review by 28 June 2004.

3. The matter was listed for hearing today.  The Minister, for reasons that have not been satisfactorily explained, did not comply with my directions.  A bundle of documents was filed well after 7 May 2004.  After attempts were made to serve that bundle of documents on the applicant it was finally served on 22 July 2004. 

4. On 12 August 2004, although it may have been 15 August 2004 according to the applicant, the applicant attended at the Minister’s solicitor’s office and returned the book because it did not relate to him.  He was then given the correct bundle of documents.  However, no complaint was made about the late service of the bundle.  In any event, there has been no attempt by the applicant to file and serve an amended application.

5. The applicant says from the bar table with the assistance of an interpreter that the handwritten application to this Court was filled out by an Indian friend of his who is not a lawyer.  He also says that when he received the correct bundle of documents he took the bundle to a solicitor called Anthony but whose name and telephone number he cannot presently recall.  He says that Anthony told him that he would not have time to look at the matter prior to the hearing date and that he should ask for an adjournment.  The applicant says that he needs an adjournment in order to get further evidence from India and from Australia to the effect that he belonged to the particular political party as he claimed and that his life would be in danger if he returned to India. 

6. In the directions that I gave on 23 April I gave leave for the Minister to file a notice of motion for summary dismissal of the application as an abuse of process or as showing no reasonable cause of action.  One might have expected that that leave would have been taken up.  It was not.  In the circumstances I consider that it is appropriate to deal with the matter today as on a final hearing.  The material, for the reasons that I have explained, indicates that there is no basis for granting relief, however, in view of the unfortunate circumstances concerning the lack of preparation by the Minister I will stay any orders I make so that the applicant will at least have an opportunity to get legal advice. 

7. In his primary application, according to the Tribunal’s reasons, the applicant described himself as a Hindu Tamil Indian.  He was born in Thanjavur district, Tamil Nadu in India where he lived from his birth until August 2003.  He travelled to Australia on a renewed passport issued in his own name in June 1997. 

8. The applicant claimed that he has been a supporter of the ‘DMK party’, Tamil Nadu’s main opposition party, and then of the ‘MDMK party’, a break-away party.  He claims to have been harassed and attacked by people associated both with his old party as well as the new party.  He claimed that he was charged with fabricated charges of being implicated in an assassination plot to kill the Chief Minister, but was released on bail and then hid from the police and subsequently fled to Australia.  However, during some of that time he had also travelled regularly to Singapore on business trips. 

9. The Tribunal found the applicant to be a most unsatisfactory witness.  The Tribunal said that the applicant’s oral evidence differed in very marked and significant ways from his written claims and that in any case his evidence was implausible and unconvincing.  In particular, the Tribunal raised with the applicant the fact that there were disparities of several years with regard to events he claimed he experienced and that there were significant differences in the details of those events.  The applicant could not provide a satisfactory reply to the Tribunal’s concerns.  For those reasons the Tribunal was not satisfied that the events that the applicant claimed he had suffered actually occurred, nor could the Tribunal be satisfied that any fears that the applicant may have with regard to returning to India were well-founded. 

10. In any event, the Tribunal found that even if the applicant had a fear of returning to Tamil Nadu it would be appropriate for him to relocate to some other state of India where his claimed political enemies from Tamil Nadu’s Government and opposition parties would not be present.  The Tribunal did not accept the applicant’s claims that he could not relocate to some other state of India because he does not know how to travel to other states of India.  The Tribunal reached that conclusion having regard to the applicant’s record of international travel to Singapore and to Australia.  For those reasons the Tribunal concluded that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention.

11. The application to this Court was not supported by an affidavit.  The application does not specify the relief that he seeks other than stating that it was in respect of the Tribunal's decision.  The grounds might be summarised as follows:

    (1)The decision-maker erred in relying on what has become known as the doctrine of effective protection.  That doctrine is no answer to the claim that Australia has protection obligations where a person is found to be a refugee within the meaning of the Convention.

    (2)The decision-maker did not follow proper procedures as required by the Act.  No such procedures were identified.

    (3)The decision-maker’s finding that the applicant does not have a well-founded fear of persecution in India was not open to it.

    (4)The decision-maker failed to assess whether the applicant’s fear of being persecuted in the reasonably foreseeable future was well-founded.

    (5)The Tribunal’s findings were an error of law.

    (6)The Tribunal's decision was made in bad faith.

    (7)The Tribunal’s decision involved an abuse of power.

    However, no particulars were furnished in respect of any of those assertions.  It seems likely that the assertions were based in no manner on the reasons of the Tribunal or the proceedings before the Tribunal. 

12. There is nothing in the material before me that indicates that the decision of the Tribunal was other than a decision made under the Act.  It follows from the operation of s 474(1) that this Court has no power to intervene in the Tribunal’s decision.  The application should, therefore, be dismissed. 

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             23 November 2004

The Applicant appeared in person
Solicitor for the Respondent:	Ms Hanstein of Blake Dawson Waldron
Date of Hearing:	30 August 2004
Date of Judgment:	30 August 2004