S1090 of 2003 v Minister for Immigration and Multicultural Affairs
[2006] FCA 1026
•8 AUGUST 2006
FEDERAL COURT OF AUSTRALIA
S1090 of 2003 v Minister for Immigration & Multicultural Affairs
[2006] FCA 1026MIGRATION – no point of principle
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
S1090 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 815 OF 2006
TRACEY J
8 AUGUST 2006
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 815 OF 2006
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
S1090 OF 2003
AppellantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
TRACEY J
DATE OF ORDER:
8 AUGUST 2006
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The Refugee Review Tribunal be joined as the second respondent.
3.The appellant pay the first respondent’s costs, fixed in the sum of $3, 000.
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 815 OF 2006
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
S1090 OF 2003
AppellantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
TRACEY J
DATE:
8 AUGUST 2006
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal against a judgment of a Federal Magistrate handed down 11 April 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) of 1 July 1999: see Applicant S1090/2003 v Minister for Immigration and Multicultural Affairs [2006] FMCA 621. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse grant of a protection visa to the appellant.
The appellant is a citizen of India and is of Muslim religion. Before the Tribunal the appellant claimed to have a well-founded fear of persecution for his political opinion and religion. He claimed to have previously been a member of the Muslim League and that he was being persecuted by the Muslim League in order to prevent him from providing evidence about riots and murders in 1996, and because he refused to travel to Pakistan for training as a militant. The appellant also claimed persecution by the police for his religion as a Muslim and his political opinion, and persecution by local Hindu shopkeepers who were part of the Hindu Nationalist movement and who were jealous of the appellant’s successful business.
The Tribunal did not accept the appellant’s claims as credible. It found that the evidence regarding the Muslim League wanting to send the appellant to Pakistan appeared improbable, including his explanation that they wanted to send him there to silence him. The Tribunal could find no country information as to the Muslim League having contact with ‘Pakistani underground agents’, which the appellant claimed that they had. The Tribunal also found that the appellant’s material claims were not convincing and that some of those claims were implausible. It would evidence as to the appellant’s involvement in political groups and being on a ‘hit list’ to be inconsistent. It also found that the appellant’s delay of 10 months in leaving India after the issue to him of a passport appeared inconsistent with the appellant having a subjective fear of remaining in India. Even though the Tribunal made adverse credibility findings, the Tribunal went on to consider the reasonableness of relocation in the event the appellant’s claims were true and were Convention related. The Tribunal considered the appellant’s language skills, independence and political profile, amongst other things, in conjunction with the fact the appellant’s problems were local, and found that relocation within India was a reasonable option.
On 19 March 2004 the appellant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court of Australia. On 12 November 2004 the appellant filed an amended application which alleged that the Tribunal exceeded its jurisdiction and constructively failed to exercise jurisdiction by: failing to find that the appellant would be abducted by Pakistani underground agents and the Muslim League even if he relocated; that it failed to give valid reasons why relocation would be safe; failed to consider that the appellant was on a hit list; and failed to understand that the appellant did not face harassment from shopkeepers but from Pakistani underground agents, the Muslim League and Indian authorities.
On 28 March 2006 the appellant filed written submissions raising the following grounds of review: that the Tribunal made a jurisdictional error by way of identifying a wrong issue; that the Tribunal relied on irrelevant material; made an erroneous finding and reached mistaken conclusions; that the Tribunal was biased; that it did not comply with procedural fairness; that the decision was made in bad faith; the Tribunal erred in its relocation findings which were unfair and out of context; that the Tribunal held a positive state of disbelief while making credibility findings; and the independent country information was irrelevant. In support of his claims the appellant quoted various legal authorities.
The Federal Magistrate noted the grounds in both the amended application and the written submissions bore very little relationship to one another, and proceeded to deal with the grounds in the written submissions in order. His Honour found that the appellant had misquoted the Tribunal’s findings in one of the grounds as the Tribunal did not find that the appellant’s claims were true and the Tribunal had gone to great lengths to point out why the Tribunal did not accept the appellant’s evidence as credible. The Federal Magistrate also concluded that: there was no evidence to support an allegation of bad faith; that the Tribunal gave detailed reasons as to reasonableness of relocation which were also in context; that the appellant had misconceived the decision of the Federal Court in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 which said it was not necessary for a decision maker to hold a positive state of disbelief before making an adverse credibility assessment; that there was no evidence of bias or failure to comply with procedural fairness; some of the grounds sought to obtain merits review; that it was unreasonable to expect the Tribunal to foresee future events upon which the appellant sought, with hindsight, to rely; and that credibility was a factual matter. The Federal Magistrate dismissed the application as there was no jurisdictional error in the decision.
The notice of appeal filed on 1 May 2006 stated the following ground:
“Her Honour [sic.] erred in holding that the Refugee Review Tribunal has not exceeded its jurisdiction or constructively failed to exercise it, by failing to have regard to a relevant consideration”
The notice did not identify the relevant consideration which, it was claimed, was not taken into account.
At the hearing of the appeal before me the appellant appeared in person and was assisted by an interpreter. He explained that his ground of appeal should be understood to allege that the Tribunal had exceeded its jurisdiction or constructively failed to exercise it by failing to have regard to a number of relevant considerations. The appellant identified these considerations as being:
(a)the appellant's fear for his life if returned to India;
(b)the attempt made to force him to undergo military training in Pakistan;
(c)the overall world situation since 1997 with particular reference to the emergence of Al-Qaeda; and
(d)the harassment which he had experienced at the hands of some Hindus and the police.
As I endeavoured to explain to the appellant during the hearing matters (a), (b) and (d) had all been considered by the Tribunal. His real complaint was that his evidence and submissions about these matters had been rejected on the merits. Matter (c) was far too generalised to have been of assistance to the Tribunal. Even if it had been entitled to look back with hindsight to matters that were not before the delegate matter (c) was certainly not a matter which the Tribunal had been bound to take into account.
No error is shown in the Federal Magistrate’s decision. The appeal will 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 Tracey. Associate:
Dated: 9 August 2006
Appellant: Appellant appeared in person Counsel for the Respondent: S. McNaughton and M. Moody Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 8 August 2006 Date of Judgment: 8 August 2006
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