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MIGRATION - Fear of persecution - protection visa - review of RRT decision - jurisdictional error - lack of bona fides.

NAOJ v Minister for Immigration [2002] FMCA 280 (31 October 2002)

NAOJ v Minister for Immigration [2002] FMCA 280 (31 October 2002)
Last Updated: 18 November 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAOJ v MINISTER FOR IMMIGRATION
[2002] FMCA 280



MIGRATION - Fear of persecution - protection visa - review of RRT decision - jurisdictional error - lack of bona fides.



Migration Act 1958 (Cth) s.474

Little v Commonwealth (1947) 75 CLR 94

NAAV v Minister for Immigration [2002] FCA FC 228

NAML v Minister for Immigration [2002] FCA 1190

Applicant:
NAOJ



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 711 of 2002



Delivered on:


31 October 2002



Delivered at:


Sydney



Hearing Date:


31 October 2002



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Applicant in person



Counsel for the Respondent:


Mr M Johnson



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs assessed in accordance with Part 21, rule 21.02(2)(a) in the sum of $4500.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 711 of 2002

NAOJ


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant is an Indian citizen who arrived in Australia on

7 October 2000. On 1 November 2000 he lodged an application for a protection visa (class XA). He was immigration cleared and was therefore entitled to consideration for a visa under sub-class 866 (protection). On 2 February 2001 a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs refused to grant a protection visa and on 27 February 2001 the applicant applied for a review of that decision.

2. The review was carried out by the Refugee Review Tribunal, which made its decision on 31 May 2002 and handed it down on 19 June 2002. The decision made by the tribunal was to affirm the original decision not to grant a protection visa. The applicant sought review from this court by way of an application originally filed in the Federal Court of Australia and dated 14 July 2002. That application was transferred to this court by order of Hely J on 13 August 2002.

3. The grounds set out by the applicant in his application are as follows:

(1) The tribunal erred in amounting to jurisdictional error in finding that the applicant "does not have any profile" that place him at risk outside his home town, or outside Tamil Nadu;

(2) Exceeded its jurisdiction in making its decision to affirm the first respondent's decision;

(3) Constructively failed to exercise its jurisdiction in arriving at its decision;

(4) The applicant is entitled to a protection visa for which he has applied;

(5) The applicant have a well-founded fear of persecution in the country of his nationality, ie. India.

4. It is immediately obvious that the grounds of application do not appear to answer to the very restricted grounds of review now available to a person in the applicant's position since the passing of s 474 of the Migration Act and the decision of the Full Bench of the Federal Court in NAAV v Minister for Immigration [2002] FCA FC 228.

5. The case was the subject of a directions hearing in which the applicant was required to file and serve an amended application and any evidence upon which he proposed to rely on or before 19 September 2002. The applicant was also required to serve an outline of submissions on or before five working days prior to the hearing date. In accordance with the usual process, the applicant was also given the opportunity of obtaining legal advice pursuant to the Minister's scheme. He did obtain some advice.

6. At the commencement of these proceedings I advised the applicant of the limited scope of the court's powers and asked him to confine his remarks to be responsive to those limitations. According to the history of the applicant's claims found in the decision of the tribunal between [129CB] and [143CB], the applicant lived in a town known as Kattuthalaivasal in Karaikudi in the State of Tamil Nadu. His father was a real estate agent there. The applicant is a Muslim by religion and of Tamil ethnicity. Both he and his father provided assistance to refugees from Sri Lanka of Tamil ethnicity who settled in Karaikudi.

7. The applicant claimed that he had been arrested in 1992 and detained for approximately 10 days on suspicion of involvement with the LTTE. He was detained for approximately 10 days and during that detention was beaten and tortured but he was released without charge. On the advice of his father he left the state and found work in Saudi Arabia for approximately four years. He returned to Tamil Nadu in 1996.

8. Upon his return he found work with a finance company and in the submission to the tribunal he advised that following a dispute between a client of the finance company and the directors of the company regarding the loss of a substantial amount of cash he had been set upon one evening by a number of men and severely beaten. He again left the country and went to Malaysia to find work.

9. The applicant claimed that in about July 2000 he provided assistance to some injured and wounded Tamil males who were staying in a house owned by his father or in respect of which his father was responsible for the collection of rent. Very shortly after that he was arrested again and was only released upon the payment of a bribe of a substantial sum of money by his father. His father was then warned that the applicant should leave the country otherwise he may be imprisoned "for good".

10. These claims by the applicant were all considered by the tribunal, which came to a view, that he had been detained in 1992 and that he had worked for the finance company. The tribunal was reluctant to accept the other matters claimed by the applicant as true. It did, however, utilise their existence for the purposes of considering whether or not, if they were true, they would amount to a genuine fear of persecution for convention reasons. The Tribunal came to the conclusion that they would not. The matters are dealt with at some length between paragraph [64] and [72] and [74] and [75] of the tribunal's reasons for decision.

11. When the matter came before me the applicant submitted that the difficulties, which he had encountered in India, were caused by his wish to help a particular race. He also stated that in relation to the finance company incident the beating had occurred because Hindus had made investments and it was Hindus who had lost their money. He was a Moslem and the people affected by the loss of their savings were angry with him. This is a different claim from that originally put forward which seems to have involved just one investor and it would not be possible to overturn the decision of the tribunal on the basis of, what is in effect, a claim that was not previously before it.

12. The applicant also told me that because he had been found to be helping LTTE members the Indian Police thought that he himself was a member of the LTTE and that he had therefore come under suspicion in relation to the assassination of Rajiv Gandhi. The applicant said:

"I expressed these views before the tribunal but they rejected my claim. I cannot go back to my country, that is why I am here before the Federal Court today."

The applicant went on to say that he advised the RRT of his genuine fear that was on account of his religion and he believed that the Hindus were after him.

13. The matters, which were put to the court today, are matters, which go to the merits of the tribunal's decision. They do not go to any jurisdictional error, much less to the kind of error, which could sustain relief in the presence of the privative clause. There is no indication in any of the documents filed by the applicant or in anything which he said to me that he is alleging that the tribunal was not acting bona fide in the manner in which it came to its conclusion.

14. The respondent has referred to the quotation of an extract from a decision by Dixon J in Little v Commonwealth (1947) 75 CLR 94 [108-111] in a judgment of Tamberlin J in NAML v Minister for Immigration [2002] FCA 1190 at [31-33] where His Honour said:

32. After considering the relevant authorities Dixon J said at 112:

"The truth is that a man acts in pursuance of a statutory provision when he is honestly engaged in a course of action that falls within the general purpose of the provision. The explanation of his failure to keep within his authority or comply with conditions governing its exercise may lie in mistake of fact, default in care or judgment, or ignorance or mistake of law.

But these are reasons which explain why he needs the protection of the provision and they at the same time justify the conclusion that he acted bona fide in the course he adopted and that it amounted to an attempt to do what is in fact within the purpose of a substantial enactment."

15. I have read the decision of the Tribunal. I have not been taken to, nor have I found, anything on the face of that document which would indicate that the Tribunal acted other than in an honest attempt to deal with the matter which was before it. The matters upon which the Tribunal made conclusions were matters, which were within its power. I am unable to find, even absent section 474, any jurisdictional error, which would ground review. Certainly, with this section of the Migration Act 1958 (Cth) and the decision of the Full Bench of the Federal Court in NAAV, I am even more constrained.

16. In the circumstances I must dismiss this application. I order that the applicant pay the respondent's costs which I will assess in accordance with Part 21, rule 21.02(2)(a) in the sum of $4000.

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

Associate:

Date:
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