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

NABZ v Minister for Immigration [2003] FMCA 168 (10 April 2003)

NABZ v Minister for Immigration [2003] FMCA 168 (10 April 2003)
Last Updated: 23 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NABZ v MINISTER FOR IMMIGRATION
[2003] FMCA 168



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



Migration Act 1958 (Cth)

Re Minister; Ex parte Durairajasingham (2000) 168 ALR 467

Plaintiff S157/2002 v The Commonwealth of Australia (2003) 195 ALR 24

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Paul v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 64 ALD 289

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598

Applicant:
NABZ



Respondent:


MINISTER FOR IMMIGRATION MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ1227 of 2002



Delivered on:


10 April 2003



Delivered at:


Sydney



Hearing Date:


10 April 2003



Judgment of:


Barnes FM



REPRESENTATION

Counsel for the Applicant:


Nil



Solicitors for the Applicant:


Nil



Counsel for the Respondent:


Mr J. Smith


ORDERS

(1) That the application is dismissed.

(2) That the applicant pay the respondent's costs set in the amount of $3,500 pursuant to Order 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ1227 of 2002

NABZ


Applicant

And

MINISTER FOR IMMIGRATION &MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. This is an ex tempore judgment in the matter of NABZ v The Minister for Immigration and Multicultural and Indigenous Affairs in relation to an application for review of a decision of the Refugee Review Tribunal (the Tribunal) that was made on 27 August 2002 and handed down on 18 September 2002 affirming a decision of a delegate of the respondent to refuse to grant a protection visa to the applicant.

2. The applicant applied to the Federal Court on 11 October 2002. The matter was transferred to this court on 21 November 2002 by Justice Gyles.

3. In the application the applicant gives no details of the grounds for review. He seeks orders that the decision of the Tribunal be set aside under section 39B of the Judiciary Act 1993. In an accompanying affidavit sworn by him he merely recites the facts of his nationality, arrival in Australia and the processing of his application for a protection visa. The applicant has not filed any written submissions despite having been ordered to do so. He made oral submissions today.

4. The applicant claimed to be a citizen of India who arrived in Australia on 4 April 2001. On 11 May 2001 he lodged an application for a protection visa. On 17 September 2001 a delegate of the Minister refused to grant a protection visa and on 5 October 2001 the applicant applied to the Tribunal for review of that decision. It is that decision that is the subject of this review. The Tribunal held a hearing which the applicant attended.

5. The claims of the applicant and a summary of the Tribunal decision are set out at length in the written submissions filed by the respondent.

The applicant claimed to be a citizen of India who arrived from that country into Australia on 4 April 2001. On 11 May 2001 the applicant lodged an application for a protection visa claiming that after the demolition of the Barbari Mazjid he and his family were troubled by local Muslims and forced to move from the area. He also claimed that he had been a member of two Hindu groups which had been involved in clashes with Muslim groups starting in 1992. Finally, the applicant claimed that he had been a witness to one of the brutal murders and that he would be killed so as not to give evidence [CB 11-12]. By letter dated 12 July 2001 a delegate of the respondent wrote to the applicant setting out certain information which he proposed to take into account adversely to the applicant in making his decision and asking him to comment on that material. Amongst the material was a comment that the applicant had provided no detail as to when, how, where why or by whom he had been persecuted or whom clearly he feared upon return [CB 15-17]. The delegate made a decision refusing to grant the visa on 17 September 2001 and the applicant applied on 5 October 2001 to the Tribunal for review of that decision.

The applicant, by his adviser, provided a statutory declaration to the Tribunal in support of his application [CB 31-33]. In that statutory declaration the applicant claimed that he was a Hindu and had joined two Hindu parties in 1980 and after serious fighting in 1992 he, along with various other members of the groups, had been accused by police and arrested. He subsequently fled his home State (Kerala) for Madras and Bombay and finally lived in Korea until 1998. He claimed that he returned from Korea in 1998 because of the return to power of the BJP government. However, he claimed that there were further problems upon his return to Kerala, namely, his discovery that some of his property had been vandalised in his absence. Further, he claimed that his brother-in-law had been murdered by assailants whom he believed to be Muslims. His brother-in-law's murder was on the day he left for Australia. The applicant attended a hearing held by the Tribunal on 26 August 2002 and was assisted by an interpreter [CB55]. The Tribunal handed down its decision affirming the delegate's decision on 18 September 2002.

The Tribunal concluded that neither the applicant nor his key claims were credible [CB 79.2]. This was on the basis that a large number of his claims changed over time and were not only significantly different but were in fact the exact opposite of the previous claims [CB 78.5-6]. The further reason is that some of the claims were identical to the claims made at the Tribunal application stage in another case in which a person claimed to come from a neighbouring state of Tamil Nadu [CB 79]. This information was put to the applicant at the hearing [CB 67.6]. Nevertheless, the Tribunal accepted that the applicant had difficulties in his part of Kerala and that he still faces difficulties in Kerala [CB 80.2]. On the basis of this finding the Tribunal went on to consider whether the applicant would be able to relocate to another part of India and avoid any risk of persecution. The Tribunal first noted in this regard that the only place in which the applicant claimed to have come into direct conflict with the Muslim fanatics was in his home state and that the position he claimed to have held in the Hindu parties was not an important position in his home state of Kerala and certainly not in India as a whole [CB 80.8].

The Tribunal then considered information relevant to Hindus in other parts of India and concluded that whatever level difficulties the applicant might claim to fear in Kerala were simply untenable in the wider country, where Hindus comprise the overwhelming majority and where the groups which the applicant named as his enemies were virtually unrepresented [CB 81.10]. Having considered the general situation in India the Tribunal went on to consider whether it would be reasonable in all the circumstances to expect the applicant to relocate to another part of India. On the basis that the applicant was well-travelled, speaks, reads and writes Hindi (India's most widely spoken language) meant that he could readily adapt to another part of India as he had done in the past. This, according to the Tribunal, would be less of an adaptation than was required to move to Korea and Australia. The Tribunal also considered the applicant's present weekly income ($500) which was about half the average annual income in India and that the applicant and his family have other sources of income. On the basis of all these circumstances the Tribunal found that it would be reasonable for the applicant to relocate within India [CB 82.4]. Finally, the Tribunal concluded on all the above bases that the applicant did not have a well-founded fear of persecution within the meaning of the convention. Accordingly, the Tribunal affirmed the decision of the delegate.

6. As I have indicated, the applicant has not specified any grounds for review. In oral submissions he told the Court that he could not go back to India as if he went there he would be killed. He also said that the Tribunal did not go through the documents he gave it. When asked which documents these were, he referred to the details of an attack on his wife's brother, which he said he gave to the Tribunal in documentary form. He also referred to a claim that there had been an attack on his house during his absence.

7. The respondent submitted that the Tribunal decision turned on a finding that the applicant could reasonably be expected to relocate in India and that there was no jurisdictional error in the Tribunal decision. As the applicant is self-represented, I have considered the Tribunal reasons for decision and all of the material before me to determine whether there is a reviewable error in this case.

The applicable law

8. Pursuant to section 483A of the Migration Act 1958 (Cth) (the Act) this Court has the same jurisdiction as the Federal Court in relation to a matter arising under the Act. Pursuant to section 475A the Court has jurisdiction in relation to a privative clause decision made on a review by the Tribunal. Privative clause decision is defined in Section 474 of the Act. It is not necessary for the purposes of this decision to set out at length the law in r elation to privative clause decisions but I note, in particular, the decision of the High Court in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 195 ALR 24 in which Court held that section 474 of the Migration Act was constitutionally valid and that as a matter of construction, the expression "decision made under this Act" in section 474 must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Further, a decision flawed for reason of a failure to comply with the principles of natural justice is not a privative clause decision.

9. In this case, the Tribunal first considered the issue of credibility of the applicant. In so far as the Tribunal rejected the credibility of the applicant, that is a decision for the Tribunal which was open to it on the material before it (see Re The Minister; Ex parte Durairajasingham (2000) 168 ALR 467). However, the Tribunal went on to consider the possibility of relocation by the applicant in India. It accepted that the applicant had difficulties in his part of Kerala and still faced difficulties in Kerala on the basis of his claims. It accepted for the purposes of the decision that the claims were true (despite its doubts as to the credibility of the applicant and whether the claims applied similarly in other States of India).

10. The Tribunal undertook an extensive review of the material relating to the ability of the applicant to relocate within India. I refer in particular to pages [80] to [82] of the Court Book. It also considered the reasonableness of any expectation that the applicant should relocate.

11. The Tribunal considered information relevant to Hindus generally in India, as well as the personal circumstances of the applicant regarding possibilities and realities of location. These considerations were in accord with authorities such as the decision in the Full Court of the Federal Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.

12. The applicant has suggested that the Tribunal failed to take into account some of the information that he provided. However, it is apparent from the Tribunal reasons for decision that it did take into account information in relation to the death of his brother in law. In particular there is reference to the death certificate of his brother-in-law and also to other information that the applicant provided, such as his claims, the claims of his migration agent, a letter from his lawyer in India and a translation. There was also specific consideration of other documents submitted by the applicant to the Tribunal and to the Department of Immigration. The applicant did not point specifically to any other particular information in documentary form or otherwise that was not taken into account. The Tribunal considered in detail the various claims that the applicant made in his original application and during and in the course of the Tribunal review and hearing. It also considered material in relation to damage occasioned to the house of the applicant which was mentioned by him in these proceedings.

13. There is nothing in the Tribunal reasons for decision or other material before the court to indicate that the Tribunal erred in the way in which it approached its task. It engaged in a detailed examination of the circumstances claimed by the applicant, including his own evidence. The weight to be given to particular evidence was a matter for the Tribunal. It considered the elements or integers of the applicant's claims. The Tribunal was entitled on that basis to arrive at the decision which it did. It properly considered the question of relocation. Further, there is nothing in the material before the Court to suggest that any of the procedures adopted by the Tribunal in respect of the process of reviewing the delegate's decision was unfair. No jurisdictional error is apparent in the Tribunal's consideration of the applicant's claims (see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 and Paul v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 64 ALD 289).

14. Accordingly, it has not been established that there is any jurisdictional error upon which the Court may make the orders sought by the applicant. The decision is a privative clause decision and subject to section 474 of the Act. For the sake of completeness I note that it was not argued and nor does the material before the Court establish that any of the Hickman provisos have been breached. (see R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598).

15. It follows that the applicant's claim for relief must be dismissed. Accordingly, it is ordered that the application is dismissed. I will hear submissions in relation to costs.

16. As the applicant has been wholly unsuccessful it is appropriate that he pay the respondent's costs. I consider that this case is one of the more straightforward cases to come before the Court and that costs should be fixed. The appropriate amount of costs in this case is $3500. Accordingly, it is ordered that the applicant pay the respondent's costs set in the amount of $3500 pursuant to Order 21.02(2)(a) of the Federal Magistrates Court Rules.

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

Associate:

Date: 10 April 2003
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