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MIGRATION - Review of decision of RRT - where applicant requested from them time to provide evidence - where time granted - where further time was requested - whether restriction on further time constituted jurisdictional error.

NAUK v Minister for Immigration [2004] FMCA 901 (24 November 2004)

NAUK v Minister for Immigration [2004] FMCA 901 (24 November 2004)
Last Updated: 22 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAUK v MINISTER FOR IMMIGRATION
[2004] FMCA 901




MIGRATION - Review of decision of RRT - where applicant requested from them time to provide evidence - where time granted - where further time was requested - whether restriction on further time constituted jurisdictional error.




Federal Magistrate's Court Rules 2001

Migration Act 1958 (Cth)

Applicant:
NAUK




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1884 of 2003




Delivered on:


24 November 2004




Delivered at:


Sydney




Hearing date:


24 November 2004




Judgment of:


Raphael FM




REPRESENTATION

For the Applicant:


Applicant in person




Counsel for the Respondent:


Mr J Smith




Solicitors for the Respondent:


Clayton Utz




ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrate's Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1884 of 2003

NAUK



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. The applicant is a citizen of India. He arrived in Australia on 23 December 1998. On 17 October 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 14 March 2002 a delegate of the Minister refused to grant a protection visa and on 14 January 2003 the applicant applied for a review of that decision.

2. On 24 March 2003 the applicant received a letter from the Tribunal informing him that it could not make a favourable decision about his case on the information before it and invited him to a hearing on 2 May 2003. The applicant attended the hearing on that day. On 14 April 2003 the applicant provided the Tribunal with a statement found at [CB 67] to [71]. On 25 June 2003 the Tribunal determined to affirm the decision not to grant a protection visa and handed down its decision on 18 July 2003.


3. During the course of the hearing the applicant asked the Tribunal member for some further time in which to provide documentation which would corroborate his own evidence as to his well founded fear of persecution for reasons of religion, the applicant being a Muslim living in Hyderabad. The Tribunal granted that extension. On or about 14 May 2003 the Tribunal received a letter from the applicant dated 18 May 2003 [CB 93] requesting a further 28 days to submit the documents.

4. The Tribunal responded to that letter on 19 May 2003 by giving the applicant an extension of time until 10 June 2003. If you include both the 14th May and 10 June that is 28 days.

5. On 11 June 2003 the Tribunal received a further letter from the applicant asking for a further 28 days [CB 95]. On the same day the member requested a member of the Tribunal staff to contact the applicant and inform him that the Tribunal would only allow a further seven days to provide information as he had had several years to obtain the material that he was seeking [CB 137].

6. Some information had been provided by the applicant. This is found between [CB 96] and [137]. With the exception of the document at [CB 96] which relates directly to the applicant, the other information is information of a general nature about the situation for Muslims in India.

7. The essence of the applicant's claim for protection was that in 1993 he was the subject of two attacks by BJP personnel and a third incident occurred in 1997 when he was allegedly kidnapped left alone in a room for 2 days and then released. The applicant also told the Tribunal that his brother, who had come to Australia in late 1997 and left in August 2002, and was also a member of the NBT had gone missing. His parents believed he had been killed by BJP activists.

8. In the Tribunal's findings and reasons which commence at [CB 151], it indicated that it had considerable concerns regarding the applicant's credibility. It said:

" Throughout the hearing the applicant was prepared to change his evidence in response to inconsistencies put by the Tribunal."

9. The Tribunal then provided examples of those changes of evidence. At [CB 152], the Tribunal said:


"Further, the Tribunal finds that the applicant's account of his kidnap far fetched and implausible. He claimed to have been hit and put in a sack and taken to an unknown location where he was tied up and then left completely alone for two days. After being left completely alone for two days he was released. It is difficult from the applicant's evidence to fathom what the motivation of his kidnappers were, the reason for the kidnap or what they hoped to achieve."

10. In respect of the only document which the applicant submitted that appeared to bear any direct relationship to his claims the Tribunal said at [CB 155]:

"The Tribunal refers to the applicant's claim that his brother was kidnapped by the BJP. The Tribunal refers to the document provided by the applicant purported to the (sic) issued by the District Court Hyderabad. The Tribunal has some concerns regarding the veracity of this document. Firstly it is very vague as to what it is purporting to be declaring. Secondly the Tribunal notes that the words, "Districtic Court" appear at the bottom of the document in the attestation section. The Tribunal does not accept that if this was a genuine document attested by an official of the District Court that the word, "District" would be spelt incorrectly. The Tribunal does not accept this as a genuine document."

11. The Tribunal did not accept that the applicant had a well founded fear of persecution for a convention reason either for his political opinion or for reasons of his religion. The Tribunal found that the applicant was not a refugee within the meaning of the Convention.

12. Before me today the applicant restricted his complaints about the Tribunal's decision to a failure of the Tribunal to allow him the further period of 28 days he had requested in order to provide documentation to it. I have already noted that the applicant had a period of 10 days and then a further period of 28 days to provide documentation after the end of the hearing.

13. When he asked for a further 28 days he was given a further seven days. Mr Smith points out that even then a decision had not been made or handed down so that if the applicant had produced more documents prior to the 18 July 2003 it may well have been that the Tribunal could have taken those into account. He did not produce any documents. He did not produce an affidavit to this court indicating what documents he might have been able to produce or what efforts he had made to produce any documents at all apart from those have already been referred to and were considered by the Tribunal. He has not provided me with any evidence of what he might have done had he received the extension of time requested.

14. The Tribunal's duty is to give the applicant a reasonable opportunity to present his case. The applicant was given that by virtue of the oral hearing that he sought and was given. He was also given additional time to produce documents even though it was his duty to satisfy the Tribunal that he had a genuine claim to refugee status and if those documents were needed for that purpose then he should have had them available before the hearing. It is not to be forgotten that the applicant first came to Australia some years before he appeared at the Tribunal.

15. In all the circumstances I am not satisfied that any practical injustice was done to the applicant. The Tribunal did give him extra time in which to produce documents and he managed to produce some. These were of no assistance to him.

16. I think that the Tribunal did give the applicant a reasonable opportunity to present his case and therefore complied with all of its obligations under the Migration Act 1958 (Cth). I cannot see any jurisdictional error on the part of the Tribunal by drawing a line at the 11 June 2003.

17. The application is dismissed. The applicant is to pay the respondent's costs, which I assess in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrate's Court Rules.


I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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