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MIGRATION - Review of decision of the Refugee Review Tribunal - application for a protection visa - whether the applicant has a well-founded fear of persecution for a Convention reason - whether the Tribunal approached its task with a closed mind - whether the Tribunal's decision was tainted by bias - whether the Tribunal made a Craig type of jurisdictional error by failing to take into account relevant considerations - whether there is a reviewable error.

NADD v Minister for Immigration [2003] FMCA 203 (15 May 2003)

NADD v Minister for Immigration [2003] FMCA 203 (15 May 2003)
Last Updated: 28 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NADD v MINISTER FOR IMMIGRATION
[2003] FMCA 203



MIGRATION - Review of decision of the Refugee Review Tribunal - application for a protection visa - whether the applicant has a well-founded fear of persecution for a Convention reason - whether the Tribunal approached its task with a closed mind - whether the Tribunal's decision was tainted by bias - whether the Tribunal made a Craig type of jurisdictional error by failing to take into account relevant considerations - whether there is a reviewable error.



Migration Act 1958 (Cth), s.36(2)

SBAU v Minister for Immigration [2002] FCA 1076

Minister of Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507

Craig v State of South Australia (1995) 184 CLR 163

Applicant:
NADD



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 1383 of 2002



Delivered on:


15 May 2003



Delivered at:


Sydney



Hearing date:


15 May 2003



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Self-Represented



Counsel for the Respondent:


Mr J D Smith



Solicitors for the Respondent:


Blake Dawson Waldron


ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs assessed in the sum of $4,250.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 1383 of 2002

NADD


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant in this matter is in an Indian citizen who arrived in Australia on 27 August 2001. On 25 September 2001, he lodged an application for a protection (class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 29 December 2001, a delegate of the Minister refused to grant him a protection visa and on 14 January 2002, the applicant applied for review of that decision by the Refugee Review Tribunal.

2. The Tribunal conducted a hearing on 6 September 2002 and made its decision on 11 December 2002. The decision, which was to affirm the original decision of the delegate not to grant a protection visa, was handed down on 2 October 2002.

3. The applicant claimed that he had a well-founded fear of persecution for convention reasons based upon the fact that as a Muslim person of Tamil ethnicity he provided medicines and material for uniforms to an associate in Columbo which he accepted must have been for the use of the LTTE. The applicant claimed that this action of his was discovered by the authorities in Tamil Nadu and he was arrested and detained for three or four days. He claimed that he was mistreated while in detention and a friend was required to pay a bribe to have him released.

4. The applicant claims that he relocated to his uncle's house about 60 kilometres away from his own home and although the police came searching for him, they did not discover him, or if they were aware of his whereabouts he was able to bribe them not to arrest him again. In about July 2001, the applicant applied for and received a passport in his own name and he left Chennai Airport on that passport on 27 August 2001. He claims that he was not arrested then because he had paid money to a friend who had bribed officials at the airport and maybe the police as well.

5. The applicant informed the Tribunal that he believed that he would be arrested if he returned to India for what he described as a non-bailable offence. In response to questions from me, he indicated that the non- bailable offence that was referred to in his submissions was the same offence for which he had originally been charged and in respect of which he had not yet gone to Court.

6. The applicant also claimed asylum on the basis of a well-founded fear of persecution for reason of religion, namely his Muslim religion in India. He claimed that Muslims were indirectly harassed and received harsher penalties from the courts even for minor offences. However, his claims were general in nature and did not refer to any specific instances of persecution to himself.

7. The Tribunal dealt with the claim in a short expression of findings and reasons between [CB 75 and 76]. The Tribunal accepted the applicant's claim that he was a supporter of the LTTE and sent medicines and material for uniforms to Columbo. The Tribunal accepted that the LTTE has been illegal since the assassination of Rajiv Ghandi. The Tribunal accepted that the applicant was arrested in mid 2000 and detained for a few days and that he was mistreated. The Tribunal accepted that between that time and his departure in August 2001, he was able to avoid arrest through living only 60 kilometres from his home. The Tribunal noted that the applicant was able to leave India on a passport in his own name issued in August 2000 through Chennai Airport.

8. The Tribunal concluded:

"I consider that it is most unlikely that the applicant would have been able to leave India by air on his own passport if he were genuinely a fugitive from the Tamil Nadu police or if he was at any risk of being arrested there. I am satisfied that the applicant was issued with a passport and allowed to leave India without difficulty because he was not of interest to the authorities in Tamil Nadu.

Having heard the applicant's evidence I am not satisfied that he is wanted by the police. I am not satisfied there is a real chance he will be arrested and jailed on return to Tamil Nadu.

If I am wrong about this then I am satisfied that the applicant could safely relocate within India. If he has been able to leave India without difficulty then it would see no national alert has been placed for him and he would be able to re-enter elsewhere in India without difficulty.

The applicant when asked if there were other reasons why he could not relocate, said he had a family and could not live alone. I am satisfied that the applicant could relocate with his family.

I am not satisfied it would be unreasonable for him to relocate.

The applicant is a Muslim. He claims that Muslims are indirectly harassed and receive harsher penalties even for minor offences. He did not claim that he would suffer any instances of persecution because he is a Muslim. I also note the information above.

I am not satisfied that the applicant faces a real risk of persecution because he is a Muslim."

9. The applicant produced a document described as his submissions to the Court. This is a lengthy document written in English. The applicant advised me that it had been prepared by a friend who was assisting him. The applicant also informed me that he had received advice under the Minister's scheme. The structure of the document is to take the two matters upon which the applicant claims he is entitled to review; namely, lack of bona fides and jurisdictional error, and to set out first, at length, a discussion of the various cases relating to those matters and then to indicate why the applicant believes that the decision under review today falls within those dicta.

10. In relation to the claim that the Tribunal did not act bona fide the applicant argues that the decision-maker had predetermined the course of the outcome even before the hearing and therefore had a closed mind which refused to be swayed whatever explanations could be ascribed. The submissions quote from a number of relevant cases on the subject including that of SBAU v Minister for Immigration [2002] FCA 1076. His Honour Mansfield J said:

"If, allowing for the need for the Tribunal's reasons not to be read overzealously with an eye attuned to the perception of error and having regard to the serious nature of the claim that the Tribunal did not approach it's task in good faith, the Court is firmly persuaded that the Tribunal did not approach it's task in good faith, it is the duty of the Court to so conclude.

11. In the Minister of Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at 531-2 the High Court discussed the nature of bias in this context and concluded that it constituted a view incapable of alteration. A view that had been formed before the hearing which indicated a closed mind and not an empty mind. The applicant seeks to establish this from the findings and reasons which have been extensively set out in this document. The case is simply not made.

12. The Tribunal had before it certain country information concerning the ability to leave India by air and the nature of warrants for arrest. It relied on that evidence and the fact that the applicant had managed to bribe his way out of the first arrest situation and had not been re-arrested in over a year. The Tribunal came to the conclusion that the applicant was not a genuine fugitive from the Tamil Nadu police and therefore presumably not the sort of person who could be described as a terrorist and therefore likely to be the subject of a national arrest warrant.

13. The conclusion reached by the Tribunal was capable of being reached upon the evidence before it and does not indicate in any way that the Tribunal came to the matter with a closed mind or a view incapable of alteration. There is nothing in the questioning of the applicant revealed in the reasons for decision that indicates a predisposition against him.

14. The Tribunal does go on to complicate the matter in the paragraphs commencing - "If I am wrong about this". At first sight those paragraphs appear illogical, but on more careful reading they could be restricted to the Tribunal being wrong solely about being wanted by the police. There is some evidence in the reasons for decision which would suggest that it is possible that a person wanted in one State would not be wanted in another, and it would follow from that that a fugitive in one State could return to another part of India and live there safely without further risk of arrest. In any event, the two paragraphs to which I refer no more evidence lack of bona fides than any other paragraph.

15. The applicant deals with the question of jurisdictional error by citing extensively from the judgement of the High Court in Craig v State of South Australia (1995) 184 CLR 163 at 179. He then goes on to provide examples of the identification of a wrong issue - the asking by the Tribunal of a wrong question - the ignoring by the Tribunal of relevant material and the relying by the Tribunal upon irrelevant material. In respect of the identification of a wrong issue, the applicant says that the Tribunal considered that the issue was whether or not the applicant could get a passport in August 2000, when he was arrested in mid-July 2000. Whereas the relevant question, was whether the applicant would be persecuted due to his political opinions. I accept Mr Smith's argument that the issue considered by the Tribunal was the one set out in s.36(2) of the Migration Act 1958 (Cth) ("the Migration Act"), i.e. whether the applicant had a well founded fear of persecution for Convention reasons in accordance with the Convention and that in order to answer that question, the Tribunal had to discover whether there was any basis for the alleged fear on the part of the applicant. The matter raised was in that context.

16. The submission in relation to the wrong question is in a form that is difficult to understand. It seems to set out what the applicant believes to be the right question, namely, whether he would be persecuted for his imputed political opinions of supporting the Tamil cause. He goes on to suggest that the documents in the possession of the Tribunal prove that if he returned home and was associated with the prescribed organisation, he would definitely be persecuted and hence would be in danger. This seems to beg the question of whether or not the applicant is actually wanted in respect of offences arising out of his imputed political opinions. The Tribunal found that he was not.

17. In relation to the ignoring of relevant material, all the applicant cites is the fact that the Tribunal had accepted that he had supplied medicines and materials for uniforms for the LTTE which had been illegal since the assassination of Rajiv Ghandi. Firstly, the Tribunal did not ignore that fact. It specifically mentioned it. Indeed it found it to have been true. What it did not do and what the applicant would have wanted it to do was to find that that fact alone would lead to danger or persecution of the applicant. The Tribunal was perfectly within its powers in not making that decision.

18. The example quoted for reliance upon irrelevant material concerned the leaving of the country. In this regard the Tribunal quoted from a DFAT country information report numbered [CB 73]. A proper reading of that quotation indicates that departures through airports are very difficult for a wanted person in the absence of a forged passport or a passport in another person's name. This is not the case here. The quotation goes on to make reference to departure by land borders, and that is what is referred to in the applicant's submissions, but he did not depart by land, he departed by air.

19. Finally, the applicant makes submissions concerning the making of an erroneous finding or reaching a mistaken conclusion. He says:

"The findings and conclusions should have been defined if the applicant is likely to suffer persecution due to his imputed political opinion about supporting the cause of Tamils through the medium of LTTE, which is a proscribed organisation and due to which the applicant is likely to be persecuted once he lands in his home country. This has not be touched by the Tribunal member in his findings."

20. It seems to me that the applicant has misconceived the case that he himself put to the Tribunal. He did not argue that any sympathiser with the LTTE was likely to be persecuted in India. He argued that he was likely to be persecuted because he had already been arrested for his support for the LTTE. The Tribunal found that he was not likely to be persecuted because it did not believe that he had in fact been charged with any serious offence. The Tribunal dealt with the case that was put by the applicant and not the more general case which has been put here. In those circumstances it is difficult to say that the Tribunal made an erroneous finding or reached a mistaken conclusion.

21. In all the circumstances, I am unable to see any jurisdictional error in the actions of this Tribunal. I must therefore dismiss the application, which I do. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250, in accordance with Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court rules.


I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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