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MIGRATION - review of decision of the Refugee Review Tribunal affirming a delegate's decision to refuse to grant a protection visa - alleged political activity in India - credibility of the applicant - whether the conclusions of the RRT were reasonably open to it.

NAHS v Minister for Immigration [2002] FMCA 161 (1 August 2002)

NAHS v Minister for Immigration [2002] FMCA 161 (1 August 2002)
Last Updated: 21 October 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAHS v MINISTER FOR IMMIGRATION
[2002] FMCA 161



MIGRATION - review of decision of the Refugee Review Tribunal affirming a delegate's decision to refuse to grant a protection visa - alleged political activity in India - credibility of the applicant - whether the conclusions of the RRT were reasonably open to it.



Commonwealth of Australia Constitution Act 1900 (Imp), s.5

Migration Act 1958 (Cth), ss.420, 424

Leeth v Commonwealth (1992) 174 CLR 455

Applicant:
NAHS



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ479 of 2002



Delivered on:


1 August 2002



Delivered at:


Sydney



Hearing Date:


1 August 2002



Judgment of:


Driver FM



REPRESENTATION

Applicant appeared in person









Counsel for the Respondent:
Mr J Smith



Solicitors for the Respondent:
Clayton Utz


ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the respondent's costs and disbursements of an incidental to the application, fixed at $4,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ479 of 2002

NAHS


Applicant

And

MINISTER FOR IMMIGRATION,

MULTICULTURAL AND INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. I have before me for ex tempore judgment an application to review a decision of the Refugee Review Tribunal ("the RRT") made on 4 April 2002. The decision of the RRT was to affirm a decision of a delegate of the respondent Minister to refuse to grant the applicant a protection visa.

2. The grounds of the application to this Court are:

a) the procedures that were required under the Migration Act 1958 (Cth) ("the Migration Act") to be observed in connection with the making of the decision were not observed;

b) the RRT ignored the merits of the case;

c) the RRT did not take into consideration the real fear of persecution on religious and political grounds;

d) the RRT made a number of errors to decide the fate of the applicant's claim;

e) the RRT misjudged the applicant's claim;

f) the RRT took into consideration irrelevant matters; and

g) the RRT did not have any authorities to justify its decision.

3. I have had the benefit of written submissions prepared both by the solicitors for the respondent Minister and the applicant. I accept as accurate the following background facts and circumstances set out in paragraphs 2, 4, 5, 6 and 7 of the respondent Minister's submissions.

4. The applicant, a citizen of India, entered Australia on 3 January 2000 on a temporary business visa and applied for a protection visa on 25 January 2000. The basis of the application was that the applicant claimed to fear persecution from members of various political parties in India opposed to the party of which he was a member (the Indian Congress). He claimed to have been attacked and that his shop had been burned down and false charges laid against him.

5. A delegate of the respondent made a decision on 9 March 2000 refusing to grant the applicant a visa and the applicant applied to the RRT for review of that decision. The applicant submitted a number of documents to the RRT in support of his claim and gave oral evidence at a hearing held by the RRT on 12 March 2002. On 30 April 2002 the RRT handed down its decision affirming the decision of the delegate.

6. The RRT accepted that the applicant was involved in the Congress Party but did not accept that he had left India to avoid persecution from his political opponents. The bases for this finding were:

a) it was implausible that the opponents should wait until the end of 1999 until they targeted him;

b) the applicant was working in Goa, 2,000 kilometres away from Calcutta; and

c) he had already obtained a visa for Norway before the incident which he claimed precipitated his departure from India, and it was likely that he had commenced arrangements to come to Australia by that time.

7. The RRT also found that it was not unreasonable in the circumstances of the applicant's mobile skills that he relocate within India and that he would not face persecution if he did so. Finally, the RRT did not accept that the applicant was of adverse interest to the authorities for any reason.

8. The applicant has had the benefit of limited legal advice prior to the hearing before me today and his outline of written submissions reveals some legal input. He represented himself before me today and made limited oral submissions in support of his application. It is apparent in particular from those oral submissions that the applicant is principally concerned with the merits of the decision of the RRT. The applicant is concerned that, in his view, the RRT has made a wrong decision and that he should be accepted as a person to whom Australia has protection obligations.

9. It is important to bear in mind in migration proceedings before this Court that it is not the function of the Court to review the merits of a decision of the RRT. Neither is it the function of the Court to decide whether an applicant should be granted a protection visa. The function of the Court is limited to an examination of the RRT decision and proceedings before the RRT to determine whether prerogative relief should be granted by reason of some error of law appearing from those proceedings or the decision.

10. The principal submission made by the applicant orally before me was that the RRT should have verified his claims by making enquiries in India, rather than by drawing adverse conclusions from the material that was put before the RRT. The RRT is clearly empowered by s.424 of the Migration Act to seek additional information. However, the RRT is not under any general obligation to use that power. The question of whether the RRT erred in not exercising that power depends upon whether the conclusion reached by the RRT was reasonably open to it on the material already before it. It also depends upon whether there was information readily available to assist the RRT in making its decision that the RRT chose not to pursue.

11. In the present case the conclusions reached by the RRT are set out on pages 12, 13 and 14 of its decision and reasons. The RRT accepted that the applicant had been involved with the Congress Party in his home village in India. However, the RRT did not accept that the applicant left India to avoid persecution from his political opponents. Neither did the RRT accept that he was of adverse interest to the Indian authorities. The RRT found that while it is possible that the applicant's political opponents may have attempted to discredit him for his work as a representative of the Congress Party, it was not satisfied that such opponents targeted him as he claimed.

12. The RRT found implausible the applicant's claim that his opponents targeted him at the end of 1999, long after he was defeated at local elections. The RRT found that the applicant was injured in about August 1999, but found that there was no established link between that injury and any political persecution. The RRT also found that the applicant was able to move away from his village to work in Goa, some 2,000 kilometres away, and rejected the applicant's assertions that his political opponents had targeted him in Goa.

13. The RRT also rejected any link between the alleged burning of the applicant's shop and political persecution. The RRT appeared to accept that the applicant may have been the victim of random criminal activity, but was not prepared to accept that there was any political motivation in that criminal activity.

14. The RRT found that the applicant had made a decision to leave India before the alleged incidents of persecution that he asserted. In making that conclusion, the RRT noted that the applicant had obtained a visa for Norway before the incident he asserted led to his departure from India. The RRT rejected letters the applicant submitted from a Mr Khanra and other members of the Congress Party in support of his application, on the basis that these letters were self serving.

15. It is apparent from the reasons of the RRT that the RRT was unable to accept that the applicant had been the victim of persecution in India in terms of the Convention and it also found that he did not leave India to escape persecution. The RRT found that even if the applicant was at risk of persecution in his home district, he had a demonstrated ability to relocate within India and that by that relocation he could avoid any such localised persecution.

16. I am satisfied that those conclusions of the RRT were reasonably open to it on the material before it. In addition, the applicant has not pointed to any particular information that might have been discovered in India that the RRT failed to pursue. In the circumstances, I find that the RRT was under no obligation to pursue further inquiries in India as asserted by the applicant. In coming to that conclusion I also take into account the obligation on the RRT in s.420(1) of the Migration Act to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and, relevantly, quick.

17. In his written submissions, the applicant asserts a number of legal errors made by the RRT. I refer in particular to the matters set out in paragraphs 4, 5, 6 and 8 of the applicant's written submissions. It seems to me, however, that the matters raised by the applicant do not point to any error of law by the RRT but simply go to the merits of its decision.

18. In paragraph 7 of his written submissions, the applicant asserts that he was deprived of natural justice from the RRT and that he was entitled to natural justice by s.5 of the Commonwealth of Australia Constitution Act 1900 (Imp) ("the Constitution Act"). He asserts that s.5 of that Act establishes the supremacy of law over arbitrary power. The applicant also asserts that s.5 of the Constitution Act provides a guarantee of equality before the law.

19. Lumb and Moens' Annotated Constitution of Australia deals with s.5 of the Constitution Act at pages 34 and 35. The section relevantly provides that the Constitution Act and all laws made by the Parliament of the Commonwealth under the Constitution shall be binding on all the courts, judges and people of every State in every part of the Commonwealth, notwithstanding anything in the laws of any State.

20. The learned authors of Lumb and Moens say that this part of s.5 affirms the supremacy of the Constitution and laws made under it throughout the Commonwealth. They refer to the case of Leeth v Commonwealth (1992) 174 CLR 455 in which Deane and Toohey JJ sought to draw support from the section for a general principle of equality before the law.

21. Whether or not that inference can be drawn from the section is an interesting academic question which might theoretically have some practical significance for the interpretation of the privative clause in the Migration Act. However, it is unnecessary for me to deal with that proposition in these proceedings. The reason why it is unnecessary for me to deal with that proposition is that I have come to the view that with or without the privative clause in the Migration Act there is no basis for me to grant prerogative relief interfering with the decision of the RRT. The applicant has been unable to demonstrate to me any error of law on the part of the RRT either in the conduct of the proceedings before it or on the face of its decision. In the circumstances it is unnecessary for me to express any view on the operation or interpretation of the privative clause in s.474 of the Migration Act. I will therefore dismiss the application.

22. In this matter I will order that the applicant pay the respondent's costs which I fix in the amount of $4,000.


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

Associate:

Date: 9 August 2002
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