NACX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 112 (25 February 2003)

Last Updated: 9 December 2003

FEDERAL COURT OF AUSTRALIA

NACX v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 112

NACX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1128 OF 2002

GYLES J

SYDNEY

25 FEBRUARY 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1128 OF 2002

BETWEEN:	NACX APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	25 FEBRUARY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant to pay the costs of the respondent.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1128 OF 2002

BETWEEN:	NACX APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	GYLES J
DATE:	25 FEBRUARY 2003
PLACE:	SYDNEY

REASONS FOR EX TEMPORE JUDGMENT

1 This is an application seeking to set aside a decision of the Refugee Review Tribunal ("the Tribunal") dated 6 September 2002, which affirmed the decision of the delegate of the respondent Minister not to grant a protection visa to the applicant. The details of claim in the application are as follows:

"1. The procedures that were required under the Migration Act 1958 to be observed in connection with the making of the decision were not observed.

2. The Tribunal failed to consider the characteristics of the party, which the applicant belonged.

3. The Tribunal misunderstood the claim of the applicant and failed to consider the material fact of the claim.

4. The Tribunal did not provide an opportunity to the applicant to comment on information, which the Tribunal relied on its decision.

5. There are no authorities to justify the Tribunal's decision.

6. The tribunal did not take bona fide attempts to furnish this review."

The jurisdiction of the Court is not identified, but it must be taken to be an application pursuant to s 39B of the Judiciary Act 1903 (Cth).

2 The applicant is not legally represented. He filed a document setting out his contentions prior to the hearing and he did not add anything to that at the hearing. The only ground of jurisdictional error which he has identified is that the Tribunal member was biased and prejudiced.

3 On 20 April 2000 the applicant arrived in Australia on a visitor's visa (sub-class 456) issued by the Australian High Commission in New Delhi on 25 February 2000, valid for three months after arrival. On 5 June 2000 he lodged an application for a protection visa, which was declined by the delegate of the Minister on 26 June 2000. The claim for the protection visa was based upon a fear of persecution if the applicant returns to India because of his adherence to, and activities in connection with, what he described as the Naksal or Naskal movement. Because the claim of bias is to be judged upon the decision of the Tribunal, it is necessary to look at the decision with some care, although I do not propose to set out extracts of it in extenso or to summarise all of it. Under the heading "Claims and Evidence", the reasons identify documents before the Tribunal, then summarise in some detail the claims which had been made in the application for visa and supporting statements. The delegate's decision is then summarised, and the application for review referred to.

4 The next sub-heading is "Invitation to Hearing" and it is noted that the Tribunal had written to the applicant inviting him to give oral evidence and present argument, and it had also, prior to that hearing, written to the applicant asking a number of questions arising from his primary application, and asking for more details on some of the experiences cited by him. The applicant provided answers to those questions in writing prior to the hearing, together with some supporting documentation.

5 The Tribunal's reasons then deal with the hearing. It is noted that the applicant was accompanied by a migration agent (although the agent was apparently incorrectly named). The hearing was conducted with the assistance of an interpreter in the Bengali language. The Tribunal advised the applicant that it had studied the further material provided by him in answer to its questions, and, while that information was appreciated and helped on some issues, it was not satisfactory in others and these would be raised with him later in the hearing. The Tribunal then summarised the initial claims in a manner which the applicant agreed was a fair summary of his claims. He, however, went on to give further explanations which are summarised in detail in the reasons of the Tribunal. In the course of this, the Tribunal drew attention to information which it had which cast doubt upon the applicant's version of events. The migration agent was then invited to, and did, make a closing submission, which is summarised in the reasons. The Tribunal then summarises the independent country information under a series of headings.

6 The Tribunal then sets out its findings and reasons. It accepted that the applicant was a citizen of India, from West Bengal as he claimed. However, the Tribunal did not accept the applicant's version of events or that he had any well-founded fear of persecution as claimed. This was based firstly upon internal inconsistencies in what the applicant had said and, secondly, upon inconsistency between what he had said and independent country information on various counts. Furthermore, the Tribunal member relied upon the applicant's ability to leave India freely, on his own passport and under his own name, and on the fact that on his own account he been released on bail on two occasions and had breached conditions without any consequences, to assist in concluding that he was not a person of interest to the authorities prior to leaving India, nor would he be so on his return. The Tribunal also held that if it were wrong, any fear of persecution was localised in character to West Bengal and that he could avoid this by relocation within India. It was acknowledged that there might be some disadvantage in terms of employment, but that he would not suffer serious harm as defined in the legislation. His low political and criminal profile and his relative importance in a country the size and diversity of India would not lead to any risk of continuing persecution by West Bengal authorities, if that risk of persecution existed.

7 I have read the reasons of the Tribunal for its findings with some care, particularly in the light of the matters raised by the applicant in the document filed prior to the hearing. Whilst I can understand that the applicant might feel aggrieved by the result and the process of reasoning of the Tribunal, I cannot detect any evidence of bias, in the legal sense, on the part of the Tribunal member. The process and procedure which is described in the reasons indicates, on the contrary, that the applicant was afforded every opportunity of presenting his case and both he and his advisor were told, in writing and during the hearing, of the concerns the Tribunal member had. As the process and procedure does not point to bias, the only thing left is the reasoning process of the Tribunal member. It will be rare that bias can be established in that way. Although decision-making of this kind can appear to be somewhat arbitrary if generalised country information is preferred to particular matters put forward by an applicant, that is the inevitable by-product of having to make this kind of decision of an administrative character. The role of the Court in reviewing Tribunal decisions is limited to jurisdictional error. The merit of the decision is not a matter which the Court can consider. The mistake as to the name of the advisor is not evidence of bias, and is of no greater significance than the applicant's incorrect reference to Bangladesh rather than India in the document he filed. Bias has not been established.

8 No other jurisdictional error has been alleged and none is obvious to me. The application is dismissed. The applicant is to pay the costs of the respondent.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated: 25 February 2003

The applicant appeared in person
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	6, 25 February 2003
Date of Judgment:	25 February 2003