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MIGRATION - Review of decision of the Refugee Review Tribunal - application for a protection visa - whether the applicant had a well-founded fear of persecution for a Convention reason - whether the Tribunal failed to take relevant considerations into account - whether the Tribunal failed to give the applicant the opportunity to comment on country information it intended to rely upon - where there was inconsistencies between the applicant's written evidence and oral evidence - credibility of the applicant - whether the Tribunal's decision indicated bias - whether the Tribunal made a jurisdictional error.

NACR v Minister for Immigration [2003] FMCA 147 (9 April 2003)

NACR v Minister for Immigration [2003] FMCA 147 (9 April 2003)
Last Updated: 6 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NACR v MINISTER FOR IMMIGRATION
[2003] FMCA 147



MIGRATION - Review of decision of the Refugee Review Tribunal - application for a protection visa - whether the applicant had a well-founded fear of persecution for a Convention reason - whether the Tribunal failed to take relevant considerations into account - whether the Tribunal failed to give the applicant the opportunity to comment on country information it intended to rely upon - where there was inconsistencies between the applicant's written evidence and oral evidence - credibility of the applicant - whether the Tribunal's decision indicated bias - whether the Tribunal made a jurisdictional error.



Minister for Immigration v Jia [2001] FCA 17

Kamal v Minister for Immigration [2002] FCA 818

Applicant:
NACR



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 1212 of 2002



Delivered on:


9 April 2003



Delivered at:


Sydney



Hearing date:


9 April 2003



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Self Represented with Bengali Interpreter



Counsel for the Respondent:


Mr G Kennett



Solicitors for the Respondent:


Blake Dawson Waldron


ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs assessed in the sum of $4250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 1212 of 2002

NACR


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant is a citizen of India, who arrived in Australia on

12 September 2000. On 24 October 2000 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.

2. On 23 February 2001 a delegate for the Minister refused to grant a protection visa and on 12 March 2001 the applicant applied for a review of that decision by the Refugee Review Tribunal (RRT). The Tribunal carried out its review and came to a decision on 30 August 2002 which it handed down on 24 September 2002. The decision of the Tribunal was to uphold the original decision of the delegate.

3. The applicant applied to the Federal Court for review of the decision of the Tribunal on 18 October 2002. The application contained six details of the claim. These were:

(1) The procedures that were required to be observed in accordance with the Migration Act 1958 (Cth) were not observed;

(2) The fact that the applicant came from a schedule caste family and was subject to discrimination by the mainstream Hindu community was not considered by the Tribunal;

(3) The Tribunal made a number of errors to decide the fate of the applicant's claim. The Tribunal did not consider the applicant as a refugee in accordance with the provisions of the Convention;

(4) The Tribunal breached the rules of procedural fairness by failing to give the applicant an opportunity comment upon information which the Tribunal relied for in its decision, upon which the Tribunal relied;

(5) The Tribunal made a decision without any authorities. The Tribunal misjudged the fate of the applicant's claim;

(6) The Tribunal denied the existences of a number of matters without any investigations.

4. After a directions hearing the matter was referred to this Court by Gyles J on 18 November 2002. Prior to the hearing I received from the applicant a set of submissions and the applicant addressed me himself through his interpreter.

5. The applicant is a West Bengali. He lived in that area from 1990 until February 2000. He worked as a journalist for the Global Press Agency.

6. There were two bases for the applicant's alleged well-founded fear of persecution for Convention reasons. The first was his opposition to the Communist Party of India-Marxist (CPIM) which he claimed had been the dominant party in West Bengal since 1977. This date was given by the applicant in his statement dated 15 January 2001 and is repeated by the Tribunal at [CB 98].

7. The applicant claimed to be a member of the National Congress, the party in opposition to CPIM. He said that he published a number of important news articles which were critical of CPIM and alleged corruption and nepotism. He suggested that as a result of the publication of these articles he was targeted by CPIM.

8. The applicant referred to two incidents, the first of which occurred on 25 March 1998 when he was returning home from a party meeting. He stated that he was assaulted by a group of CPIM thugs. He was seriously beaten and left in a roadside drain. The second incident occurred on 23 November 1999. Again the applicant was returning home from party work when he was attacked in a bazaar by persons armed with knives. He was so scared that he jumped into a river to save his life. He could not directly identify the persons who attacked him but he believed they were associates of the CPIM.

9. The applicant alleged that the CPIM had instigated false charges against him. He felt that his life would not be safe in India if he returned because he would be tortured and killed by the police.

10. The second area in which his well-founded fear for Convention reasons was manifested was in regard to his claim to be from a scheduled caste. This was associated with his marriage to a Christian woman. The applicant informed the tribunal that he and his wife were targets of conservative or fundamentalist Hindus because of his political activities on behalf of the scheduled castes and because of his marriage to a Christian. A further matter raised by the applicant was that his father had been killed by CPIM in 1997.

11. When the matter was before the delegate it was suggested to the applicant that he might be able to relocate within India. He denied this. Later, in the interview with the tribunal, he told the tribunal that he had attempted to relocate in various parts of India but was unsuccessful in doing so.

12. The applicant provided the tribunal with three statements and then gave evidence orally. The tribunal sets out the oral evidence in some detail between [CB 101] and [CB 107]. During this evidence the applicant repeated the concerns which he had expressed in his written statements and before the delegate. He added certain matters to those statements. For example, on [CB 101] he refers to an occasion when two of his co-workers were shot dead in his presence and on another occasion the eyes of a co-worker were gouged out. The applicant informed the tribunal that he had been disowned by his own family because they were Hindu and he had married a Christian.

13. The tribunal questioned the applicant on discrepancies between his statements and the oral evidence. The tribunal referred to differences in his work history and the fact that he made no mention of an attack on his son which he said in oral evidence occurred in 1998. The tribunal alerted the applicant to discrepancies concerning visits to a police station [CB 105] which were tied in with his claims about false charges that had been laid against him. The tribunal pointed out to the applicant certain concerns which it had with his reliability.

14. In its findings and reasons at [CB 108], the tribunal says:

"For the reasons which follow with the exception of the applicant's claim that his father is deceased I do not accept any of his claims.

The applicant did not impress me as a reliable witness. I acknowledge that the assessment of credibility should be approached with due caution: See SAAK v Minister for Immigration [2002] FCA 367 and Kopalapillai v Minister for Immigration (1988) 86 FCR 547.

At pages 9-13 of this decision I have set out in some detail the manner in which the applicant gave his oral evidence, the substance of that evidence and discrepancies between the accounts provided by him in his written statements and in his oral evidence. Overall he did not impress me as a frank witness. In other respects it was necessary to press him as to his actual experiences in India for explanations as to why matters which might have been expected to have been referred to in his written statements were not advanced until the hearing. His answers to these issues often appeared to be made up on the spur of the moment."

15. The tribunal proceeds over the following three pages to particularise the finding which I have just set out. In the end the tribunal came to the conclusion that it was not satisfied on the evidence that the applicant had a well-founded fear of persecution owing to political opinion or indeed any other convention ground.

16. The applicant in his written submissions says that he is aggrieved by the decision because the Tribunal is biased. He says "they did not review my ... real situation existing in India." In his oral submissions to me the applicant made the point that the Tribunal had relied on outdated written information and had ignored his oral evidence. The applicant argued that the Tribunal should have believed the evidence which he gave.

17. I am satisfied there is no foundation for a charge of bias in relation to this decision. The only matter from which it could be said that bias was inferred was the decision itself. The applicant has supplied no evidence of conduct that might suggest bias. I accept the respondent's submission that although the decision is adverse to the applicant it is a careful and conscientious review of the material. I would imagine that the applicant made his allegations of bias because he was under the impression that this constituted one of the only available grounds of review. But one can hardly say from reading this statement of reasons that it indicates the decision-maker is so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments may be presented: see Minister for Immigration v Jia [2001] FCA 17.

18. It appears to me that the applicant has misread the decision of the Tribunal. I can see no suggestion in that decision of a preference for written evidence over the oral. The Tribunal points out inconsistencies between the applicant's oral evidence and his written statements but does not express a view as to which it prefers. It uses the inconsistencies to assist it to come to a view as to the applicant's credibility.

19. I am similarly unable to find that the Tribunal came to its conclusions on the basis of outdated country information. The ratio of the Tribunal's decision was based upon its inability to accept the applicant's fears as being well-founded and based upon real fact. The Tribunal did not need to refer to country information to come to this decision. I do not believe that it did do so. It seems clear to me that it came to the views which it did based upon its analysis of all the applicant's statements which I have previously referred to.

20. In Kamal v Minister for Immigration [2002] FCA 818 at [36] Mansfield J said:

"It is not for the court on reviewing a decision of the Tribunal to form its own view as to whether it would have given the perceived inconsistencies the significance attributed to them by the Tribunal, or upon any such view to conclude that the Tribunal's assessment of the applicant's claims should not have been made. Those evaluative processes are for the Tribunal."

21. The applicant seeks to persuade me that the Tribunal was wrong not to accept his evidence. This is territory upon which I cannot trespass. Even if the Tribunal did make a mistake of fact this is not jurisdictional error, but error within jurisdiction.

22. In all the circumstances I am unable to accede to the applicant's claim; I must dismiss it. I do so. I order that the applicant pay the respondent's costs which I assess in the sum of $4250 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.


I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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