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MIGRATION - Review of decision of Refugee Review Tribunal - no jurisdictional error - application dismissed.

NACW v Minister for Immigration [2003] FMCA 191 (24 April 2003)

NACW v Minister for Immigration [2003] FMCA 191 (24 April 2003)
Last Updated: 28 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NACW v MINISTER FOR IMMIGRATION
[2003] FMCA 191



MIGRATION - Review of decision of Refugee Review Tribunal - no jurisdictional error - application dismissed.



Migration Act 1958

Craig v South Australia (1995) 184 CLR 163

Minister for Immigration & Multicultural Affairs v Yusuf [2001] ALR 1

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 467

Applicant:
NACW



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ1202 of 2002



Delivered on:


24 April 2003



Delivered at:


Sydney



Hearing Date:


24 April 2003



Judgment of:


Barnes FM



REPRESENTATION

Counsel for the Applicant:


Nil



Solicitors for the Applicant:


Nil



Counsel for the Respondent:


Mr J. Smith



Solicitors for the Respondent:


Blake Dawson Waldron


ORDERS

(1) That the application be dismissed.

(2) That the applicant pay the respondent's costs fixed in the amount of $4000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ1202 of 2002

NACW


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal handed down on 2 October 2002. The Tribunal affirmed the decision of a delegate of the respondent to refuse to grant the applicant a protection visa. The applicant applied to the Federal Court under s.39B of the Judiciary Act on 25 October 2002. The matter was transferred to this Court on 20 November 2002. The applicant participated by telephone in directions hearing on 12 December 2002 at which time orders were made for the filing of an amended application, an outline of submissions and that the applicant attend the hearing today in person.

2. On the morning of the hearing, 24 April 2003, the Court received a facsimile letter from the applicant stating that he was unable to attend the hearing and was sick and unfit. He attached what he claimed to be a copy of a medical certificate. The medical certificate does not bear the letterhead of a doctor or medical institution. It is dated 23 April 2003. The applicant who lives in Woolgoolga states that he obtained it from Griffith Hospital on that date. It states that he was admitted as an outpatient to the Griffith Hospital on 23 April 2003. The form continues, he was suffering from and there is then a line drawn. There is no indication of any illness suffered by the applicant.

3. It states that he is unfit for normal work and will be able to resume work in two days. It does not address the issue of fitness to participate in a hearing. The applicant said that he did not know the name of the doctor who provided what he claims is this medical certificate. He said that he obtained it in Griffith because he was working in Griffith.

I note however that the Court was able to contact him by telephone connection during the hearing at his home number which is in Woolgoolga the day after the issue of the medical certificate.

4. He told the Court that he was suffering from diarrhoea, vomiting and a tummy upset since this morning. He then said that he had been suffering from this condition since yesterday. In these circumstances and as he was able to participate in the hearing by telephone link-up his application for an adjournment was refused and the hearing continued. He has provided an amended application and an outline of submissions to the Court prior to the hearing and he was given the opportunity to and made short oral submissions to the Court.

5. I consider that despite his claimed illness he has had an appropriate opportunity to participate in the hearing. The grounds set out by the applicant in his amended application are that the decision of the Tribunal involved an error of law being an error involving an incorrect interpretation of the applicable law to the facts as found by the Department. Second, that the Tribunal failed to give procedural fairness and third that the Tribunal misunderstood his claims therefore it asked him wrong questions, misunderstood its task and ignored the essence of his case and therefore made an error of law.

6. In an affidavit sworn with the original application on 22 October 2002 the applicant claimed that the Tribunal did not refer in its decision to a submission made by him and that the decision of the High Court in Muin may be relevant. The affidavit does not, and his submissions do not, support this assertion in any way. The outline of submissions provided by the applicant by facsimile on 23 April 2003 simply restates his claims. In the hearing he took issue with the factual findings of the Tribunal and stated that if the Court gave him a visa he would return to India when there was a good environment there. He suggested that the Tribunal did not hear his problems rightly.

Background

7. The applicant claimed to be a citizen of India from the Punjab. He arrived in Australia on 14 September 2000 and applied for a protection visa on 27 October 2000. In short, he claimed to suffer persecution initially because of a report made by him in a newspaper relating to an attack on a Muslim mosque by Hindu extremists. He claimed that he was beaten on a number of occasions by police officers and detained by them and that owing to these events he moved to Bombay hoping to start a new life but in March 2000 his house was raided by local police and he claimed he was accused of having fled the Punjab for criminal activity.

8. He moved to Deli and again attracted the attention of the local police in relation to his move from the Punjab. He then came to Australia. On

2 November 2000 a delegate of the respondent refused to grant the applicant a protection visa. The applicant sought review by the Tribunal. He submitted a letter on 5 October 2001 with a number of documents in support of his application. He attended after a number of adjournments two hearings and made submissions in support of his application. He provided a further statutory declaration on the date of the last hearing, 4 September 2002.

9. On 2 October 2002 the Tribunal handed down its decision affirming the decision of the delegate. In its reasons for decision the Tribunal outlined the applicants claims, referred to the material provided by him and to issues raised with the applicant at the Tribunal hearings including concerns that the Tribunal had about his claims and documents he had provided in support of his claims and also including issues raised with the applicant in relation to matters raised in his statutory declaration of 4 September 2002.

10. The Tribunal found that two of the documents submitted on 5 October 2001 were false and that it was not satisfied that the applicant was a journalist in India. In light of this and inconsistencies in the applicant's story the Tribunal was not satisfied that as a consequence of published articles by the applicant the police harassed him, searched for him in various parts of India, detained and tortured him. It noted that on his evidence the applicant had never belonged to any political organisation, had never been charged with any offences and did not have a criminal record and concluded that it was satisfied that the police had no interest in the applicant at the time he left India and would have no interest in him if he were to return.

11. The Tribunal found that the claims made by the applicant both in his primary application and to the Tribunal were a complete fabrication, as were the statements made in his statutory declaration of 4 September 2002. It also found that the applicant had not told the truth to the Department or Tribunal in relation to holding a previous passport. It found the applicants claims to be a refugee to have no substance and to be a complete fabrication and the applicant to be an untruthful person without credibility.

12. On the basis of the these findings the Tribunal concluded that the applicant had never suffered persecution in India for a Convention related reason and did not have a well-founded fear of so suffering in the reasonably foreseeable future.

The applicable law

13. Under s.483A of the Migration Act 1958 this Court has the same jurisdiction as the Federal Court in relation to a matter arising under the Act. The Court has jurisdiction in relation to a privative clause decision as defined in s.474. In light of the conclusions of the Court it is not necessary to consider the scope of the Court's jurisdiction and the effect of the recent decision in Plaintiff S157 of 2002. No jurisdictional error has been established by the applicant. The Tribunal's decision turned entirely on its findings as to credit. It did not believe the applicant.

14. Matters of credit are part of the function of the primary decision-maker. (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 467). It has not been established that there was any error of law involving an incorrect interpretation of the law. The applicant claimed that there was such an error but gave no particulars. As he is self-represented I have closely considered the reasons of the Tribunal to ascertain whether any such error is apparent. No such error is apparent.

15. Furthermore, the applicant claims that there was an incorrect interpretation of the law to the facts found by the Department. I note that the Tribunal hearing is a hearing de nouveau and it is for the Tribunal to make findings of fact on which it bases its decision. It carried out its task in the appropriate way making such findings and basing its reasons on those findings. There is no evidence of any incorrect interpretation of the law. Nor has it been established or is it apparent that the Tribunal misunderstood the claims of the applicant. It appears that the applicant is alleging that there was a jurisdictional error in the sense considered by the High Court in the decisions in Craig v South Australia (1995) 184 CLR 163 and Minister for Immigration & Multicultural Affairs v Yusuf [2001] ALR 1. No such error is apparent.

16. The Tribunal did not ignore the essence of the applicant's case or ask itself the wrong question. It is suggested that it asked the applicant the wrong questions. However, there is nothing to suggest that the applicant did not have an opportunity to put his case before the Tribunal, to make submissions to the Tribunal and to address its concerns. There is no evidence to support the claim of a denial of procedural fairness. It is apparent from the Tribunal reasons for decision that the Tribunal was at pains to ensure that the applicant had an opportunity to present his case and that at the hearing it put to the applicant the doubts that it had in relation to his claims and the documents he had submitted.

17. It did not fail to have regard to the applicant's submissions either of

5 October 2001 or of 4 September 2002. Issues arising from such submissions and the documents submitted were discussed with the applicant in the hearing. He had an opportunity to comment on the Tribunal concerns and the Tribunal addressed these issues in its reasons for decision. No reviewable error is apparent. Accordingly the application must be dismissed and I will hear submissions in relation to costs.

18. I have heard the submissions in relation to costs. I consider that as the applicant has been wholly unsuccessful it is appropriate that he meet the respondent's costs and I consider that an appropriate amount for such costs to be fixed under the Federal Magistrates Court Rules is $4000. Accordingly it is ordered that the application be dismissed and that the applicant pay the respondent's costs fixed in the amount of $4000.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 24 April 2003
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