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MIGRATION - Visa - protection visa - Refugee Review Tribunal - application for review of decision of Refugee Review Tribunal affirming a decision of the delegate not to grant a protection visa to the applicant - applicant a citizen of India - judicial review does not extend to the merits of the evidence - where Refugee Review Tribunal did not find the applicant to be a credible witness - no reviewable error.

NAYX v Minister for Immigration [2004] FMCA 925 (23 November 2004)

NAYX v Minister for Immigration [2004] FMCA 925 (23 November 2004)
Last Updated: 6 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAYX v MINISTER FOR IMMIGRATION
[2004] FMCA 925




MIGRATION - Visa - protection visa - Refugee Review Tribunal - application for review of decision of Refugee Review Tribunal affirming a decision of the delegate not to grant a protection visa to the applicant - applicant a citizen of India - judicial review does not extend to the merits of the evidence - where Refugee Review Tribunal did not find the applicant to be a credible witness - no reviewable error.




Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.91X, 475A

Applicant:
NAYX




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG 926 of 2004




Delivered on:


23 November 2004




Delivered at:


Sydney South




Hearing date:


23 November 2004




Judgment of:


Scarlett FM




REPRESENTATION

Applicant:


In person




Counsel for the Respondent:


Mr Potts




Solicitors for the Respondent:


Sparke Helmore




ORDERS

(1) The application is dismissed.

(2) The Applicant is to pay the Respondent's costs in the sum of $4,000.00.

(3) Transcript of reasons required.

(4) The application is removed from the list of cases awaiting finalisation.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG 926 of 2004

NAYX



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. The application before the Court is an application for review of a decision of the Refugee Review Tribunal which was handed down on 9 December 2003. That decision affirmed a decision by a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs made on 28 February 2003 to refuse to grant a protection visa to the Applicant.

2. The Applicant applied to the Refugee Review Tribunal on 26 March 2003 for a review of that decision.

3. The Applicant is not legally represented today and was not legally represented when he filed his application. He filed his application in the Federal Court on 5 January 2004. He gave his own name as the Applicant on the application and was given the code name of NAYX because, under the provisions of s 91X of the Migration Act, an Applicant for a protection visa is granted anonymity. The Court may not publish the name of an Applicant in the circumstances.

4. The application was in fact transferred to the Federal Magistrates Court and listed for hearing today. The Applicant applied for an adjournment of the proceedings after having read the Respondent's written submissions so that he could obtain legal advice.

5. I refused that application on the basis that these proceedings had been on foot since 5 January 2004 and in my view there was ample opportunity to obtain legal advice up to now.

6. The Applicant relies on the matters set out in his application under the Judiciary Act and the Migration Act in which he challenges the decision of the Refugee Review Tribunal. He says that the Tribunal failed to see that he satisfied the four key elements stated in Article 1A (2) of the Refugee's Convention of the Refugee's Protocol.

7. Those four key elements are:

a) The applicant is out of the country.

b) A fear of persecution.

c) A fear of persecution for one of more of the reasons of the Refugee's Convention.

d) That the fear is well-founded.

8. There is no doubt that the Applicant is out of his country. Regrettably, the Refugee Review Tribunal was not satisfied that he had made out the balance of his case.

9. The Applicant claims that he and his family generally have been subject to persecution and violence, fatal violence in fact, by a group in India called the Naxalites. The Naxalites, he said, had warned his family not to farm the land and when their warnings were disobeyed had murdered various members of his family. Indeed, the Applicant says that the Naxalites murdered his own father as recently as July of 2003.

10. The Applicant left India and came to Australia on a visitors' visa. The difficulty that the Applicant faces is that the Tribunal did not accept the credibility of his evidence.

11. At page 131 of the Court Book in the findings and reasons, the Tribunal member says and I quote:

The Tribunal finds that the Applicant is not a credible witness. Many of the key aspects of his testimony and his claims were simply not plausible. Some of his key claims were vague, general or not sufficiently detailed to be believable and some of his oral evidence was evasive. There were a number of recent inventions. There were material contradictions which were not explained to the Tribunal's satisfaction. Some of his claims were at odds with the independent country information and some of his key documents are not authentic. In these circumstances, for the following reasons, the Tribunal finds that his claims are not credible and does not accept most of them.

12. The Tribunal did, at page 132 of the Court Book, accept a number of the Applicant's claims, including his date and place of birth, the fact that he left India legally on 16 November 2002 on a valid passport, that he speaks, reads and writes Hindi and English, that he lived at the same address in Andhra Pradesh from March of 1967 until November of 2002, that his wife, his three daughters and his mother and his brother live in India, that he received a Visitor's visa in Mumbai on 1 October 2002. There were details of his education, a record of employment and that a Migration agent assisted him in the preparation of his application. The Tribunal member goes on to say, at page 133:

However, for the following reasons the Tribunal does not accept any of the other claims presented by the Applicant.

13. And that really is the key question. The Applicant in his application challenges the findings of the Tribunal but those challenges are to the way the Tribunal assessed the Applicant and his evidence.

14. At page 138 of the Court Book the Tribunal said:

The Tribunal can only come to the conclusion that key aspects of the Applicant's testimony are not credible and therefore finds he is not a credible witness. Accordingly, since the Tribunal finds that most of the Applicant's claims are not credible, the Tribunal is not satisfied that he has a well founded fear of persecution due to political opinion, membership of a particular social group, religion or for any other convention reason.

15. The matter that must be considered is that an application for review of a decision of the Refugee Review Tribunal is not what is known as a merits review. It is not a hearing de novo. The Federal Magistrate hearing the review does not make his or her own assessment of the evidence and the Applicant's credibility.

16. Judicial Review, unlike merits review, focuses on the lawfulness of the earlier decision, not its appropriateness. It asks whether decision makers were authorised to do what they did under the prevailing law, not whether the actual decision is the best decision which could have been made in the circumstances. It is not appropriate for a Federal Magistrate, hearing a review, to substitute his or her own view of the credibility or plausibility of the evidence to that of the decision maker.

17. It is the Refugee Review Tribunal that conducts full review, ie a merits review of an unfavourable decision by the Department.

18. The circumstances are that the Tribunal did not accept the credibility of the Applicant's evidence on the key parts of his case and it was open, as the primary decision maker, for the Refugee Review Tribunal to do that. Accordingly, the application must be dismissed.

19. Regrettably for the Applicant he has been unsuccessful in his claim. In this jurisdiction costs usually follow the event which means that the successful party is usually able to persuade the Court that there should be an order that the unsuccessful party pay the legal costs, at least on what is known as a party and party basis. The fact that an unsuccessful party is not in comfortable financial circumstances is not usually a reason for refusing to make an order for costs which would otherwise be made. I am satisfied I should make an order for costs. It should be in a fixed amount. I note that solicitor client costs were estimated at $4400. I propose to order that the Applicant is to pay the Respondent's costs and they will be fixed in the sum of $4000. I require a transcript of my reasons.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V Lee

Date: 1 December 2004
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