Saha v Minister for Immigration and Multicultural Affairs

[1999] FCA 476

FEDERAL COURT OF AUSTRALIA

SAHA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
[1999] FCA 476

MIGRATION – s 476(1)(e) – applicant seeking to appeal decision of Refugee Review Tribunal on the grounds that the tribunal reached erroneous conclusions in relation to the evidence - applicant’s grounds for appeal went to questions of fact not matters of law

Migration Act 1958 ss 476(1)(e), 476(1)(g)

AMIT SAHA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NO. NG 1367 OF 1998

MATHEWS J

9 APRIL 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1367 OF 1998

BETWEEN:	AMIT SAHA Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	MATHEWS J
DATE OF ORDER:	9 APRIL 1999
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	NG 1367 OF 1998

BETWEEN:	AMIT SAHA Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	MATHEWS J
DATE:	9 APRIL 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (the tribunal), dated 26 November 1998 refusing the applicant's application for a protection visa. The background briefly is as follows. The applicant was born in Habra, India, on 8 June 1975. He completed his secondary schooling and spent a year studying arts at Calcutta University before coming to Australia. He arrived in this country with a visitors visa on 23 January 1997 using an Indian passport in his own name which had been issued on 18 October 1996.

2. On 10 February 1997 he applied for a protection visa. In answer to questions in the application form as to why he had left India and what he feared might happen to him if he returned, he said that he would provide details and documentation later. In answer to a question as to whether the Indian authorities might protect him, he said: "The authorities have banned our political party RSS and have ordered the arrest of all its political activists. For this reason I believe my life would be in danger if I returned to India."

3. No further information was provided by the applicant at that stage. The applicant was not interviewed and on 10 May 1997 the respondent's delegate refused his application.

4. On 15 May 1997 the applicant applied to the tribunal for review of the delegate's decision. On 19 August 1998 the applicant's solicitor forwarded to the tribunal various documents, most of them typewritten and all of them apparently originating in India. They included a certificate from Rastriya Sayang Sevak Sangha (RSS), apparently signed by the President of the district committee on 5 August 1987, saying that the applicant had been recruited as publication secretary on 8 August 1987. Other information showed that the RSS was a right wing Hindu organisation operating within India.

5. The applicant also produced a series of documents, apparently emanating from the Habra Police Station and from the local courts, all dated November 1990 relating to a very serious incident which occurred on 9 November 1990. On that date supporters of the RSS and other dissident groups had staged a major confrontation with the police. During the fighting a local mosque was razed to the ground, 12 people were killed and a number of others, including five policemen, were seriously injured. The documentation showed that the applicant was one of the persons suspected of involvement in this insurrection. It included a copy of an arrest warrant for the applicant dated 11 November 1990. The applicant was only 15 at that time.

6. The tribunal also had before it a statutory declaration sworn by the applicant on 6 August 1998. In it he referred to the documents sent to the tribunal and said that they had been furnished to him by his relatives in India. As to his own background, he said that he joined the RSS in 1992 and thereafter started his political activities in his home town of Habra. He was active in recruiting Habra residents to the RSS, made numerous speeches against the Indian Congress and was involved in various demonstrations. As a result of this, he said the West Bengal Police had lodged "false and fabricated cases" against him and had accused him of involvement in a politically motivated murder case of which he was entirely innocent.

7. The applicant appeared in person before the tribunal on 24 August 1998. He had not sought an interpreter and the proceedings were conducted in English. It appears from the tribunal's decision that the applicant reiterated what he had said in his statutory declaration. He asserted the accuracy of the RSS document saying that he had become publication secretary in August 1987 although he was then only 12 years old. The tribunal pointed out that in his visa application form he had given a single address where he had lived for 10 years before leaving for Australia. H was asked how he had managed to continue to live at the one place and undertake full‑time schooling for so many years after an arrest warrant had been issued. He replied that he had stayed away from home for some of the time and also that he had bribed the police.

8. After the hearing the tribunal sought expert technical analysis of the documents which the applicant had supplied. The resultant report said that one of the documents, which apparently emanated from the police, had in fact been typed with the same typewriter as two of the documents under the letterhead of RSS. The applicant was asked to comment on this. Through his solicitor he responded that he was not surprised, as the justice system in India was not well-equipped and does not function in the same manner as it does in Australia.

9. The tribunal also had country information before it. This showed that the RSS was closely identified with the current ruling party in India, the Bharatiya Janata Party (BJP) which is, similarly to RSS, a Hindu nationalist party. It was considered extremely unlikely that an RSS activist would be detained on the basis of membership of that organisation.

10. Other information before the tribunal suggested that no-one of concern to the authorities, particularly a person against whom an arrest warrant was in force, would be able to leave India either undetected or by bribery so long as they were using a passport in their own name. If a person obtained a passport in a different name (which is apparently easy to do in India), they could leave the country undetected. However, this did not apply in the applicant's case, for he came to Australia on a passport which was in his own name and which was apparently legally obtained.

11. The tribunal commented that the applicant was not a credible witness and that his evidence was inconsistent, contradictory and implausible. It was prepared to accept that the applicant was a supporter of the RSS but otherwise disbelieved his claims that he feared persecution on his return to India. RSS members, the tribunal found, would not face persecution on the grounds of membership of that organisation.

12. In the hearing before me the applicant represented himself. He initially appeared without an interpreter but at his request the proceedings were adjourned for a few hours in order for a Bengali interpreter to be obtained. He had previously filed written submissions in the court which essentially repeated the factual matters put to the tribunal and sought a favourable outcome from this court.

13. The application to this court states that the tribunal made an error of law. The application must therefore be taken to be based on s 476(1)(e) of the Migration Act 1958. To this, if it were appropriate, I would have been prepared to add a ground under s 476(1)(g) that there was no material to justify the making of the decision. However, for reasons which will emerge very shortly, I do not think that it would be of any assistance to the applicant to do so.

14. The respondent in its submissions pointed out that the matters raised by the applicant seem only to re-agitate the merits of the application rather than to raise any error of law on the tribunal's part. With this I must agree. I asked the applicant at the hearing what error of law he said the tribunal had made. In response he raised a number of factual issues. These included the tribunal's finding that the applicant's documentation was false, whereas he told me that they were all genuine documents. The tribunal also took insufficient notice of his assertions that during the 10 years preceding his departure for Australia he had spent much time in hiding. He again asserted that the document dated 5 August 1987, saying that he had become publication secretary of the RSS on 8 August 1987, was genuine. The RSS was in its formative stages at that time, he said and even young people like himself were taking an active part in it. I asked him about his statutory declaration, furnished to the tribunal, and his written submission to this court, both of which said he joined RSS in 1992 and that this marked the beginning of his activities with that group. He responded that these were mistakes. As to the relationship between the RSS and the ruling BJP, the applicant said that they had now gone in different directions, and their previously close relationship had been fractured.

15. At the end of all this I asked the applicant again, what was the error of law made by the tribunal. He answered: "When they don't see my case properly it is an error of law."  This is an incisive and a potentially accurate proposition. If the tribunal had not seen the applicant's case properly, then it may well have constituted an error of law. The applicant's problem is that the manner in which the tribunal did not, as he puts it, “see his case properly”, related to its findings on factual issues, all of which were open to it on the evidence before it.

16. Even when a case does not appear on its face to raise matters of principle, there is a particular responsibility for a court, when an applicant is unrepresented, to ensure that no otherwise unnoticed injustice has occurred which should attract the intervention of the court. In this regard I have looked keenly at the material which was before the tribunal and at the findings of the tribunal. In the end I can find no procedural or substantive error on the part of the tribunal. I might myself have reached the same conclusion on different grounds from those relied upon by the tribunal, but it was clearly open to the tribunal to make the findings that it did upon the material which was before it. Moreover the tribunal's ultimate conclusion, namely that the applicant did not have a well-founded fear of persecution in India on the basis of his political opinion, was really compelled by the evidence. For all objective country information refuted the applicant's protestations as to his fears of persecution and  indicated that membership, even active membership of the RSS, would not lead to persecution or incarceration in India.

17. In the result I can find no error on the part of the tribunal. The application is dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mathews.

Associate:

Dated:             9 April 1999

The applicant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 April 1999
Date of Judgment:	9 April 1999