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MIGRATION - Review of a decision of the Refugee Review Tribunal - whether the Tribunal erred in finding the applicant's fear of persecution was not well founded.

NABY v Minister for Immigration [2002] FMCA 134 (10 July 2002)

NABY v Minister for Immigration [2002] FMCA 134 (10 July 2002)
Last Updated: 30 January 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NABY v MINISTER FOR IMMIGRATION
[2002] FMCA 134



MIGRATION - Review of a decision of the Refugee Review Tribunal - whether the Tribunal erred in finding the applicant's fear of persecution was not well founded.



Migration Act 1958 (Cth) s.474

Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) Schedule 1

Judiciary Act 1903 (Cth) s.39B

Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant:
NABY



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 395 of 2002



Delivered on:


10 July 2002



Delivered at:


Sydney



Hearing Date:


5 July 2002



Judgment of:


Raphael FM



REPRESENTATION

Solicitors for the Applicant:


Theodore Solomon & Partners



Counsel for the Respondent:


Mr S Lloyd



Solicitors for the Respondent:


Clayton Utz



ORDERS

(1) Application dismissed.

(2) Applicant pay the respondent's costs in the sum of $3,750.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 395 of 2002

NABY


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant is a citizen of India of the Sikh religion. He arrived legally in Australia on 3 October 1999. On 2 November 1999 he lodged an application for a protection (class XA) visa with the Department of Immigration & Multicultural Affairs under the Migration Act 1958 (Cth).

2. His application was declined by a delegate of the Minister on 15 November 1999 and on 13 December 1999 the applicant applied for a review of that decision.

3. The hearing before the Tribunal did not take place until 25 September 2001, approximately one year and nine months after the application. The decision of the Tribunal was made on 3 October 2001 and handed down on 25 October 2001. As such the decision is one to which the provisions of the new s.474 of the Migration Act apply by virtue of the transitional provisions of the Migration Act contained in Schedule 1 of the Migration Legislation Amendment (Judicial Review) Act 2001.

4. The applicant's claim to a well-founded fear of persecution arises out of the fact that he is a member of the Sikh minority and had political involvement in the Akali Dal party. In a letter from his solicitors to the Tribunal it was stated:

"The applicant says that he is scared to return to India because he will be persecuted by the authority and other political groups due to his involvement in the Akali Dal in the light of the above mentioned reasons, we submit that there is a real chance of persecution upon return to India because of his ethnicity, political opinion and involvement in the different political party."

5. In addition the applicant advised the Tribunal that he feared persecution from a particular local official who he had exposed and who had brought a number of cases against him. It appears that notwithstanding the applicant's jaundiced views about the independence of the Indian judiciary he has been successful in 26 of the 27 cases lodged so far. The Tribunal at [CB 73] said:

"The applicant indicated that he was afraid that he would not win the current case because it had been put before a corrupt judge and because his friends might no longer support him. However, the applicant did not advance any reasons why his friends would not support him in one case when they had done so in the previous 26. Furthermore, the independent evidence before me, which I accept is that there is an independent judiciary in India."

6. The first of the Tribunal's reasons for rejecting the application was that it believed that a man with the applicant's educational and employment background could easily relocate to a different part of India where any alleged persecution would not exist. The "in-country" information contained in the Court Book indicates that whatever the situation might be in Kashmir, Sikhs in other areas are not significantly discriminated against.

7. In Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 Black CJ with whom Beaumont and Whitlam JJ agreed rejected the proposition made by the applicant that the "internal protection principle" had no place in refugee law. The Chief Justice said at 441:

"The focus of the Convention definition is not a problem of protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders.&q;
uot;

8. The applicant was represented in these proceedings before me and the focus of his application for review was narrowed to a number of issues which were articulated in written submissions and later by Mr Bharati who appeared.

9. The first point that was made was that the applicant had not been granted procedural fairness because the inordinate delay before the Tribunal heard his merits review meant that the decision was one to which the privative clause applied and he was thus disadvantaged. The applicant would certainly have been disadvantaged by falling under the new regime if the Tribunal's merits review was found deficient for one of the reasons which existed before 2 October 2001 and was no longer available afterwards. The applicant provided me with no authority to the effect that this disadvantage would itself command a review and I have been unable to find one.

10. The residue of the applicant's complaints concern the manner in which the Tribunal had considered the evidence which was put before it. In this he referred to the evidence given by the applicant and the use made by the Tribunal of outside information. The written submissions at [7] state:

"The RRT acted in excess of its jurisdiction. The RRT was bound to enquire into the reasons behind the making of the threats in order to determine the applicant's claim properly. The RRT was obliged to act as an "inquisitor" and thus was bound to explore the applicant's claim that the applicant was a member of the Akali Dal. His association with the Akali Dal was the main reason for his fear of persecution. Because of his association with the Akali Dal many falls (sic) cases brought against him in the courts ... The RRT did not give credibility to the applicant's claim that he has no protection from a local or central government."

11. I am satisfied from a perusal of the decision and the Court Book that the Tribunal did give appropriate consideration to the applicant's membership of Akali Dal. The Tribunal pointed out that in the period since the applicant had left the Punjab Akali Dal had joined in government in the region. The Tribunal came to the conclusion that there was unlikely to be any persecution arising out of membership of this organisation. This is a conclusion to which the Tribunal was perfectly capable of coming without criticism.

12. Although credibility is in any event a matter particularly within the power of the Tribunal (Re MIMA; Ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at [67]) there was very little dispute as to credibility in this case.

13. In his oral submissions Mr Bharati argued that the Tribunal was no longer the informal organisation which the applicant had expected it to be. He claimed that the Tribunal was preoccupied with an intention to refuse applications and that it came to its task with a closed mind. He felt that this was particularly the case in relation to applicants from India or Bangladesh because the Tribunal consistently found the documents produced by these applicants to be bogus.

14. To the extent that these arguments supported an allegation that the Tribunal had not acted bona fide it should be noted that no such claim was made in the written submissions and no evidence was produced. On the face of the record the application made in this case seems to have been considered and a decision appropriately made. I am not aware of any dispute relating to a document that might have affected the Tribunal's decision. The applicant did criticise the use by the Tribunal of information gleaned from the Internet. The Tribunal is an investigative body. It is entitled to obtain information from whatever sources it considers appropriate. Generally speaking, the Tribunal puts to applicants information which it believes might affect the case as the Tribunal is required to do pursuant to the legislation. Applicants have plenty of opportunity to provide refuting documentation. In saying this I accept that there is a distinction between documentation of a general nature and that which goes particularly to the position of an applicant.

15. Having considered the submissions made by the applicant I am of the view that he has been unable to establish any grounds upon which review could be ordered under s.39B of the Judiciary Act 1903 (Cth) and there is therefore no necessity for me to consider the extent to which the power of the Tribunal has been widened by virtue of s.474(2) of the Migration Act.

16. I dismiss the application. I order that the applicant pay the respondent's costs which I assess pursuant to Part 21 rule 21.02(2)(a) Federal Magistrates Court Rules in the sum of $3,750.00.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 10 July 2002
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