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1 On Friday 13 August 2004, this matter was heard and the appeal was dismissed with costs. The Court indicated that reasons would be published today. These are those reasons.

2 This is an appeal from orders made of a Judge of the Court dismissing an application under s 39B of the Judiciary Act 1903 (Cth) and under the Migration Act 1958 (Cth) in which orders were sought in respect of a decision of the Refugee Review Tribunal (the "Tribunal") made on 27 August 2003 in which the decision of a delegate of the Minister to refuse the appellant a protection visa was affirmed.

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

NAWO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 218 (19 August 2004)
Last Updated: 19 August 2004

FEDERAL COURT OF AUSTRALIA


NAWO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 218






































NAWO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 442 of 2004

KIEFEL, ALLSOP & CRENNAN JJ
19 AUGUST 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 442 of 2004


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


BETWEEN: NAWO
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGES: KIEFEL, ALLSOP & CRENNAN JJ
DATE OF ORDER: 13 AUGUST 2004
WHERE MADE: SYDNEY


THE COURT ORDERS THAT:


1. The appeal be dismissed.
2. The appellant 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 442 of 2004


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


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


JUDGES: KIEFEL, ALLSOP & CRENNAN JJ
DATE: 19 AUGUST 2004
PLACE: SYDNEY


REASONS FOR JUDGMENT


THE COURT:

1 On Friday 13 August 2004, this matter was heard and the appeal was dismissed with costs. The Court indicated that reasons would be published today. These are those reasons.

2 This is an appeal from orders made of a Judge of the Court dismissing an application under s 39B of the Judiciary Act 1903 (Cth) and under the Migration Act 1958 (Cth) in which orders were sought in respect of a decision of the Refugee Review Tribunal (the "Tribunal") made on 27 August 2003 in which the decision of a delegate of the Minister to refuse the appellant a protection visa was affirmed.

3 The appellant is a citizen of India and arrived in Australia on 25 April 2002. The appellant�s claims in respect of asserted persecution were set out by the Tribunal and recounted by the primary judge in [2] of his Honour�s reasons in the following terms:

[2] The Tribunal summarised the main elements of the Applicant's claim in a precis which was read to the Applicant at the hearing and with which he apparently agreed. That precis is as follows:


"You are a Tamil, married and of the Hindu religion. You were educated between 1965 and 1977. You have lived virtually all your life in Chennai, living at your last three addresses for periods of about three years. You resided at your most recent address between February 1999 and 2002. You joined the RSS many years ago, and gradually took office at higher and higher levels over the years.


You obtained your first passport in 1984.


Your activities in the RSS caused you to be persecuted by leading community figures. In the early years you were imprisoned for short periods of a few days on several occasions. Following the destruction of the Babri Masjid mosque in 1992, you were arrested even though you had not taken part in the incident. You were eventually bailed out after some months.


Your passport expired in 1994, and you were issued with the one you now hold.


When you led a procession advocating the building of a Hindu temple on the site of the destroyed Ayodhya mosque, you were again arrested and held for a long time before being bailed. When there was an industrial dispute at your place of work, you tried to organise a protest. Police learned of your plans and attacked, injuring several people including yourself. You were taken to hospital, and were later imprisoned. Again you were bailed.


There was an incident when the RSS refused to accept an official order that a planned Hindu procession should not go past the site of a Muslim mosque. You were again arrested and held for some time before being bailed.


The RSS became involved in collecting donations in the context of a possible India/Pakistan conflict, and you came to have concerns regarding the accuracy of the accounting. This led to a confrontation with other RSS leaders. Soon after this, a Hindu priest was attacked by Muslims, and RSS people held a protest. Several people were arrested, but your RSS colleagues did not bail you out as they had done in the past. Finally, your family bailed you out. You then quit the RSS. Some months after you left, the Treasurer of the RSS was killed by Muslims, but your former colleagues took the opportunity to accuse you of complicity in the murder. Police started trying to implicate you.


To escape, you travelled to Australia and New Zealand. While you were away, you heard that the real guilty parties had been arrested so you returned to see if things were safe. However, your enemies had only stopped trying to implicate you because they thought you would not return, and when they knew you were back, they started organising false witnesses against you. You sought legal advice and having learned you would not be likely to get bail if you were arrested, you arranged to escape again. A bribe was paid to get you through the airport.


You fear that, if you return you will be arrested, tortured and maybe killed."

4 The RSS is the Rashtriya Swayamsevek Sangh, which the appellant described to the Tribunal as a "rebellious organisation". The organisation was described by the delegate of the Minister as a hard line Hindu nationalist social and cultural organisation widely regarded as the ideological fountainhead of Indian Hindu groups including the Baharatiya Janata Party (BJP). The Tribunal did not accept the appellant�s evidence. The Tribunal indicated that the oral evidence given by the appellant was at variance with his written evidence in relation to three key events in what the Tribunal considered to be a significant extent. The Tribunal assessed the appellant�s claim that his memory was not good at the hearing, partly because of the recent death of his father and because of his back pain. The Tribunal considered these factors would not have been such as to confuse him on matters of importance to his claim.

5 The Tribunal made the following important findings:

In these circumstances, the Tribunal finds that the applicant was not a member of the RSS, was not arrested at various times because of activities in the RSS, or in a union, and was not accused of the murder of an RSS treasurer. The Tribunal finds that the applicant is not wanted by Indian authorities because of any past activities of his, and is not adversely regarded by the RSS or its political allies because of any past internal dispute over accounting. It does not accept that RSS members are seeking the applicant with the intention of harming him.

In his protection visa application, the applicant stated that he was at risk of persecution because he continued political agitation against the government after his alleged departure from the RSS. However, he effectively resiled from these claims when he agreed that his current fears were based upon the issue of the alleged murder.

In all the circumstances, the Tribunal finds that the applicant does not have a well-founded fear of persecution in India.

6 These paragraphs involve, as do the totality of the reasons of the Tribunal, a disbelief of the evidence of the appellant.

7 The primary judge dealt with submissions put before him in nine respects, reflecting the submissions put to him. These matters were as follows.

8 First, the primary judge found that there was no error displayed in the refusal of the adjournment in the absence of any medical evidence. We agree.

9 Secondly, the appellant claimed that one of the factual conclusions of the Tribunal should not have been made in the absence of further enquiry. This issue related to the alleged murder of the RSS Treasurer. The appellant argued before the primary judge that the Tribunal member should have further investigated this. The primary judge said that it was the responsibility of the appellant to provide to a Tribunal such independent evidence as there may be to support his or her case. We agree. There was no obligation upon the Tribunal to make any investigation in these circumstances. It is a matter for the appellant to satisfy the Tribunal with material placed before it of the relevant matters. Absent a display of irrationality or caprice the factual conclusions of the Tribunal in this respect are not open to challenge.

10 The third submission was less than clear to the primary judge but it would appear that it was an assertion that there was error in the Tribunal by reason of some difficulty in the appellant being able to provide relevant proof. The primary judge said this was not an error of the Tribunal. His Honour was undoubtedly correct.

11 The fourth submission was based on the appellant�s explanation in some detail why he said he was unable to obtain material in India, which would have assisted his case. The primary judge said that this submission could found no error. We agree.

12 The fifth submission comprised the appellant referring to a paragraph in the Tribunal�s reasons in which reference was made to protections that the legal system affords in India. The appellant complained that while India had a very good legal system there was bias, corruption, political gain and oppression. The primary judge said that this may or may not be the case but what was said did not constitute an error of law on the part of the Tribunal justifying intervention by the Court. We agree.

13 In the sixth submission the appellant referred to a concern, which was expressed in a letter by the Tribunal to the appellant before hearing that the appellant although arriving in Australia in February 2002 had after that date departed Australia and returned to India and that an application for a protection visa had not been lodged until May 2002. The appellant put to the primary judge that he was not aware of the possibilities of obtaining a visa and had no legal assistance. The primary judge said that whether or not what the appellant said was true it hardly constituted a legal error on the part of the Tribunal. We agree.

14 The appellant�s seventh submission to the primary judge involved the complaint that the delegate had not afforded him the opportunity of making submissions concerning materials from the Department of Foreign Affairs and Trade. The primary judge indicated that he was of the view that there was no denial of procedural fairness by the delegate. More importantly his Honour pointed out that there was no denial of procedural fairness by the Tribunal being the relevant decision maker for the purposes of the hearing before the primary judge. We agree.

15 The eighth submission of the appellant referred to another paragraph of the letter from the delegate. The appellant submitted to the primary judge that in commenting on the Indian legal system the delegate did so with inadequate legal knowledge. The primary judge said that even if what the appellant said were true there was no jurisdictional error involved in the delegate writing to the appellant before making his or her decision. We agree. Further, as with the seventh complaint before the primary judge the relevant decision making the subject of the review was of the Tribunal not the delegate.

16 The ninth and final submission of the appellant before the primary judge referred to comments of the Tribunal in which the Tribunal noted that when the matter was before the Minister�s delegate, the delegate, while not formally granting the appellant an extension of time to provide information, in fact, waited until a time after the appellant had requested the extension before making a decision. The appellant suggested to the primary judge that he could not be expected to read the mind of the delegate. The primary judge noted that once again this was a complaint about the delegate not about the Tribunal. The primary judge correctly pointed out that the Tribunal heard the matter afresh and that whatever complaint the appellant may have had about a delegate it did not involve any error of law on the part of the Tribunal.

17 We see no error whatsoever in the matters dealt with by the primary judge.

18 The appeal should be dismissed with costs.

19 Shortly prior to the hearing the appellant filed a document entitled "submission". The appellant indicated at the hearing that the document had been prepared for him by another person notwithstanding his signature to the document. The first part of the submission reiterated factual history of the appellant. Thereafter the grounds for judicial review were said to be fivefold as follows:

1. Procedures as required by the migration Act was not observed in making decision.
2. The Tribunal conducted the hearing in a biased approach.
3. There was no proper reasons or supporting evidence.
4. The benefit of doubt was not given to the Applicant.
5. The Tribunal expected more material evidence which could not be gathered from here.
20 These matters have not been identified in the notice of appeal, which was handwritten. The grounds in the notice of appeal were general restatements of legal propositions as to jurisdictional error, without any specificity.

21 Thereafter in the document entitled "submission" twelve paragraphs were set out which contained asserted errors. A number took issue with the fact finding process of the Tribunal and as such did not display any basis for a conclusion of jurisdictional error.

22 The appellant claimed that the Tribunal had failed to accord him natural justice. This allegation took a number of forms. It was said that the Tribunal did not put to him doubts about documents containing information personal to him from different sources of India and those doubts form part of the reasons for the Tribunal�s decision. It was said that the Tribunal member had failed to "internalise the circumstantial grounds of my protection visa application and in weighing both the subjective and objective claims of the review application and in reviewing the huge supporting facts and documents". It was said that the Tribunal member failed to warn the appellant about "the document�s fraud and was not going to be treated as genuine in my case". There is no foundation for these allegations. The reasons of the Tribunal show a comprehensive analysis of why the appellant was disbelieved. The decision of the Tribunal did not turn upon document fraud. It turned upon a comprehensive rejection of the appellant�s evidence. The reasons of the Tribunal indicate that the appellant had matters thought relevant by the Tribunal to the credibility of his evidence brought squarely to his attention during the hearing. The assertion of a denial of natural justice is not made out.

23 There is no basis for the assertion of bias.

24 There are other complaints that material supplied by the appellant was not referred to by the Tribunal in its reasons. This is not a ground of judicial review.

25 The submission generally attacks the competence of the consideration of, and fact finding by, the Tribunal. No ground for jurisdictional error has been made out in the submission.

26 At the appeal hearing the appellant was called upon as to whether he wished to add anything to the written submissions. He indicated that he had nothing further to add.

27 There being no ground upon which to conclude that the primary judge fell into error or that the Tribunal decision was in any way effected by error, the appeal should be dismissed with costs.


I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kiefel, Allsop & Crennan.



Associate:

Dated: 19 August 2004


The Appellant appeared in person.



Counsel for the Respondent: Mr J Smith



Solicitor for the Respondent: Sparke Helmore



Date of Hearing: 13 August 2004



Date of Judgment: 19 August 2004
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