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1 The appellant appeals from the judgment of a Judge of this Court (Branson J) dismissing his application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal was not satisfied that the appellant was a person to whom Australia had protection obligations, that being a necessary criterion to be satisfied if the appellant was to be granted a protection visa.

NAHT v Minister for Immigration and Multicultural and Indigenous Affairs [2

NAHT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 320 (3 December 2003)
Last Updated: 10 February 2004

FEDERAL COURT OF AUSTRALIA


NAHT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 320






MIGRATION � appeal � no error disclosed





Migration Act 1958 (Cth)





















NAHT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 634 of 2003


HILL, MADGWICK AND CONTI JJ
3 DECEMBER 2003
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N634 OF 2003


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: NAHT
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGES: HILL, MADGWICK AND CONTI JJ
DATE OF ORDER: 3 DECEMBER 2003
WHERE MADE: SYDNEY


THE COURT ORDERS THAT:


1. The appeal be dismissed.
2. The appellant pay the respondent Minister�s costs of the appeal.














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 N634 OF 2003


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: NAHT
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT


JUDGES: HILL, MADGWICK AND CONTI JJ
DATE: 3 DECEMBER 2003
PLACE: SYDNEY


REASONS FOR JUDGMENT


HILL J:

1 The appellant appeals from the judgment of a Judge of this Court (Branson J) dismissing his application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal was not satisfied that the appellant was a person to whom Australia had protection obligations, that being a necessary criterion to be satisfied if the appellant was to be granted a protection visa.

2 The appellant was a citizen of India who had arrived in Australia on a temporary business visa. He subsequently applied for a protection (class XA) visa. That application was rejected by a delegate of the respondent Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister").

3 The appellant's case before the Tribunal was summarised by the Tribunal in a passage which is repeated also in the judgment of the learned Primary Judge. That summary is as follows:

�... He had a history of political activity since student days, opposing such issues as the oppressive behaviour by landlords and employers, official corruption and police brutality. As a result of this activity he had been arrested many times between 1979 and 2000, been detained for long periods and tortured. He had also lost his employment because of his Naxalite political activities. He was harassed and had been forced to leave home and move from hiding place to hiding place following police action against him about a banned book. None of his arrests had resulted in a trial, a conviction or an acquittal. He had given details of the charges. All were still pending. His action for wrongful dismissal has not proceeded because of bribes to court officials. As a result of the recent Ravindran incident, he was in fear of his life. Because of these experiences he had left India, requiring assistance from airport officials to obtain exit clearances and from other contacts, to obtain his visa. He feared that, if he returned to India he would be imprisoned and perhaps killed. ... .�

4 The Tribunal was satisfied that the appellant had a history of involvement with the Naxalite movement, a communist movement which advocated armed revolution. This involvement had started when he was a university student in 1979. Although the appellant denied that he had been involved in Naxalite terrorist activities the Tribunal did not accept this denial. The Tribunal, however, was not of the view that the finding that the appellant had been involved in the Naxalite movement was an answer to the appellant's claims. Particularly the Tribunal rejected claims which the appellant made before it concerning various arrests and charges he referred it to. It took this view at least in part because the appellant had not produced, as the Tribunal had requested, corroboration of these matters.

5 A part of the appellant's case had been that the Q Branch police had visited his home and taken copies of a pamphlet which contained extracts of a book which the appellant claimed had been banned. The Tribunal accepted that the book in question was controversial but did not accept that it had been banned from sale. The Tribunal rejected also the claim by the appellant that he had a fear of persecution as a result of his association with Ravindran, a leader of a political movement, who had been shot dead in 2000. The Tribunal expressed the view that even if the appellant was still at that time a member of the Naxalite movement any fear of persecution he had was not rational.

6 In rejecting the appellant's claim the Tribunal also relied upon the view it took of the fact that the appellant had easily been able to travel from India to Singapore and Malaysia and ultimately to Australia, as indicating that he was not of any concern to the Indian authorities. The learned Primary Judge was of the view that the appellant had not demonstrated any error such as to ground a claim to set aside the Tribunal's decision. Her Honour pointed out inter alia that the appellant's failure to provide corroborative evidence was a matter the Tribunal was entitled to take into account and that factual findings, for example on the question whether the controversial book had been banned, were matters for the Tribunal and not for the Court.

7 In the appellant�s grounds of appeal he claimed, firstly, that her Honour had erred in finding that a letter dated 31 July 2002 from the Tribunal to the appellant did not demonstrate bias or other legal error. Secondly, that her Honour erred in finding no error in the Tribunal's reasoning process relating to the arrests he claimed to have suffered. Thirdly, that her Honour erred in finding that the Tribunal had not made findings on certain factual matters. Fourthly, that her Honour had erred in finding that the Tribunal had not made an error in failing to find that the appellant had been persecuted by reason of his dismissal from employment and finally that her Honour erred in finding that the Tribunal had not made an error in the interpretation of s 91R of the Migration Act 1958 (Cth).

8 In his address to the Court the appellant claimed that the real error lay in the fact that the Tribunal had found he was a Naxalite and having so found was required to find that he was a refugee and therefore entitled to protection from the Australian authorities. The appellant also said that he had provided some information to the Tribunal when requested, for example, an information report and that in essence the Tribunal should have been satisfied that he was a refugee. The appellant also criticised the Tribunal for finding that the controversial book hadn't been banned when the appellant asserted that it had been.

9 There is nothing in the submissions made by the appellant to this Court or in written submissions that were filed prior to the appeal which indicates any error made on the part of the learned Primary Judge. As is not unusual in cases of this kind the appellant wishes to criticise findings of fact made by the Tribunal. However, it was not a matter for the Primary Judge nor is it a matter for this Court, to consider the merits of the appellant's application to the Tribunal. Findings of fact which the Tribunal makes are matters for it and not matters upon which this Court can interfere except in the very rare case where jurisdictional error is shown. The present is not such a case.

10 There being no error demonstrated in the judgment of the learned Primary Judge I am of the view that the appeal must be dismissed and I would order that the appellant pay the respondent�s costs of it.


I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.



Associate:

Dated: 6 February 2004


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N634 OF 2003


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: NAHT
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT


JUDGES: HILL, MADGWICK AND CONTI JJ
DATE: 3 DECEMBER 2003
PLACE: SYDNEY


REASONS FOR JUDGMENT

MADGWICK J:

11 I agree with Hill J. It seems to me that the learned primary Judge was right for the reasons that her Honour gave. The case occasions a little concern because the Tribunal Member found that the appellant was a member of a far left political faction and had suffered, as I understand the Tribunal Member, a degree of discrimination in relation to dismissal from a particular job.

12 The appellant is clearly an intelligent man but he conducted his application for judicial review before her Honour as if her Honour had the capacity to say that the Refugee Review Tribunal ("the Tribunal") had been wrong in its factual assessments and he did the same here despite the presiding Judge having tried clearly to explain that the Court could only intervene if there were serious legal errors in the Tribunal's processes.

13 It is possible that in these cases some good might be done by the respondent giving some attention to the form of words used in the letter notifying an applicant that his or her application for a visa has been unsuccessful with a view to ensuring that such an applicant does understand that he or she has a right to have the matter reconsidered. Applicants are told, as was the case here, that they may apply to the Tribunal or the Administrative Appeals Tribunal (AAT) for a review of the refusal to grant a visa. Some information about applying for a review is included with this letter. Various other helpful information is provided.

14 What is not indicated is that unless the Tribunal makes such a legal error that it can be said not to have carried out its job at all in law, or that similarly, unless a grave legal error has been made, the Tribunal's factual reconsideration of the matter will be the end of the road so that it is very important that if an applicant has any material of any kind that can be put before the relevant Tribunal for the purposes of review that should be done. It would also be useful to indicate that if the applicant is able to avail himself or herself of legal representation or legal advice, the time to do so is before the hearing by the relevant Tribunal.

15 Likewise, the formula used by the Tribunal when advising unsuccessful applicants of the Tribunal's decision could also, with respect, possibly be more explicitly helpful. In this case, as is usual, the Tribunal's letter contained the following passage:

�What if I disagree with the Tribunal's decision?
You may have a limited right to seek review of this decision by the Federal Court, Federal Magistrates Court and/or the High Court. There are strict time limits within which an application for review by the Courts must be filed. You are taken to be notified of the decision seven (7) working days from the date of this letter. I strongly advise you to promptly seek legal advise if you wish to seek review by the Courts.�
16 It seems to me that unexceptionally this advice could go further and with a suitably qualified form of words tell unsuccessful applicants plainly that none of the courts mentioned possess legal authority to interfere on "humanitarian grounds", a phrase used by the appellant in his present submissions here, nor indeed, by way of merely reassessing the facts as assessed by the Tribunal.


I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.



Associate:

Dated: 6 February 2004



IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N634 OF 2003


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: NAHT
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT


JUDGES: HILL, MADGWICK AND CONTI JJ
DATE: 3 DECEMBER 2003
PLACE: SYDNEY


REASONS FOR JUDGMENT


CONTI J:

17 I agree with the reasons for judgment of Hill J, and also those of Madgwick J. I agree the appeal must be dismissed.




I certify that the preceding one (1) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.



Associate:

Dated: 6 February 2004



Counsel for the Appellant: The appellant appeared in person.



Counsel for the Respondent: J Smith



Solicitor for the Respondent: Sparke Helmore



Date of Hearing: 3 December 2003



Date of Judgment: 3 December 2003
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