Applicant S276 of 2003 v Refugee Review Tribunal [2003] FCA 1609 (4 December 2003)

APPLICANT S276 OF 2003 v REFUGEE REVIEW TRIBUNAL & ORS

N994 OF 2003

EMMETT J
4 DECEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N994 OF 2003

BETWEEN:	APPLICANT S276 OF 2003 APPLICANT
AND:	REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SECOND RESPONDENT COMMONWEALTH OF AUSTRALIA THIRD RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	4 DECEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. the application be dismissed;

2. the applicant pay the second respondent’s costs.

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	N994 OF 2003

BETWEEN:	APPLICANT S276 OF 2003 APPLICANT
AND:	REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SECOND RESPONDENT COMMONWEALTH OF AUSTRALIA THIRD RESPONDENT

JUDGE:	EMMETT J
DATE:	4 DECEMBER 2003
PLACE:	SYDNEY

1 The applicant is a citizen of India. He arrived in Australia on 19 March 1997. On 3 April 1997 he lodged an application for a protection visa under the Migration Act 1958 (Cth). On 22 April 1997 a delegate of the second respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant a protection visa and, on 21 May 1997, the applicant sought review of that decision. On 29 September 1998, the Tribunal affirmed the decision not to grant a protection visa.

2 The applicant subsequently became party to a proceeding in the High Court of Australia. On 10 June 2003, an application for prerogative writ relief was lodged on behalf of the applicant. That proceeding was remitted by the High Court to this Court. On 27 October 2003, I directed the applicant to file and serve, on or before 24 November 2003, a statement of contentions of relevant facts and law and any affidavits upon which the applicant intended to rely at the hearing. That direction has not been complied with.

3 When the matter was called on for directions today, the applicant said that he had asked his lawyer to provide the documents to the Court and he produced a number of documents for the Court’s examination. The documents consisted of photographs and other material going to the merits of the applicant’s claim that he feared persecution if he returned to India. He said, however, that all of the documents then produced had been shown to the Tribunal.

4 The applicant also provided to the Court a handwritten statement concerning his activities since 1998. The four page document does not contain any material that would establish any ground upon which the Court would grant relief in respect of the decision of the Tribunal of 29 September 1998.

5 The Minister asks the Court to dismiss the application, pursuant to O 10 r 7(2) of the Federal Court Rules, for want of compliance with the directions given on 27 October 2003. I have considered the reasons of the Tribunal for its decision of 29 September 1998. Those reasons recorded that the Tribunal had serious doubts about the applicant’s credibility. The applicant and his brother apparently gave evidence. The Tribunal considered both the applicant and his brother were prone to embellishment and exaggeration. The Tribunal considered that the documentary evidence presented to it on behalf of the applicant was most unconvincing.

6 The applicant’s basic claim is that, as a Hindu, he and his family have suffered harm and harassment at the hands of Sikhs. He claimed that, because his brother is a member of the Shiv Sena party, the whole family has suffered. He claimed that that was illustrated by an alleged attack on his nephew with acid in 1996 and an alleged attack on his sister-in-law in 1997. The applicant also claimed that his father died as a result of injuries sustained when some men came looking for the applicant and his brother in 1998.

7 The Tribunal had difficulty accepting that any of the applicant’s claims were true. The Tribunal accepted that the applicant’s brother may have had some contact with the Shiv Sena, given that it was a party which represented Hindus. However, the Tribunal was not satisfied that the applicant himself had any significant contact with that party.

8 The Tribunal was willing to accept that the applicant’s father may have died in some sort of violent conflict in 1998 and that the applicant’s uncle and mother may have suffered injury in a bomb blast in 1992. However, the Tribunal was not satisfied that either incident was related in any way to the political activities of the applicant or his brother, nor that his family were specifically targeted in any way.

9 The Tribunal noted that the applicant's family had managed to stay safely in the Punjab since the applicant’s departure from India. It recorded that his family had not come to any form of harm at the time of the Tribunal’s decision, apart from an alleged attack on the applicant’s sister-in-law, which the Tribunal did not accept had occurred because of the inconsistent accounts given of the incident.

10 The Tribunal observed that the applicant himself had remained safely in India from the time of the alleged attack on his nephew in June 1996 until his departure from India in March 1997. The Tribunal considered that, if the applicant continues to feel uncomfortable about returning to live in the Punjab, relocation would be a reasonable option for him. The Tribunal was not satisfied that there were any reasonable barriers preventing the applicant from reaching internal safety elsewhere within India.

11 There is no error on the face of the Tribunal’s reasons. The applicant has not demonstrated any ground upon which the Court could interfere with the decision of the Tribunal.

12 In the circumstances, I consider that it is appropriate to accede to the Minister’s application.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Counsel for the Applicant:	The applicant appeared in person with the assistance of an interpreter

Solicitor for the Respondents:	Australian Government Solicitor

Date of Hearing:	4 December 2003

Date of Judgment:	4 December 2003

Federal Court of Australia

Applicant S276 of 2003 v Refugee Review Tribunal [2003] FCA 1609 (4 December 2003)