NAMO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1419 (3 November 2004)

Last Updated: 3 November 2004

FEDERAL COURT OF AUSTRALIA

NAMO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1419

MIGRATION – no point of principle
































NAMO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1210 OF 2004


MOORE J
3 NOVEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1210 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NAMO APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	3 NOVEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant 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	NSD 1210 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NAMO APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE:	3 NOVEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1 This is an appeal from a judgment of Federal Magistrate Raphael of 20 July 2004, dismissing an application for judicial review of a decision made by the Refugee Review Tribunal ("the Tribunal"). The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") to refuse to grant the appellant a protection (class XA) visa under the Migration Act 1958 (Cth) ("the Act").

Background

2 The appellant is a national of India. He claimed to be a Tamil Muslim of the Islamic faith. He arrived in Australia on 22 March 2002. On 10 April 2002, he applied to the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") for a protection (class XA) visa, which was refused by a delegate of the Minister on 28 June 2002. On 5 July 2002, the appellant lodged an application with the Tribunal for review of the delegate’s decision. The Tribunal affirmed the delegate’s decision not to grant the protection (class XA) visa by a decision made on 3 March 2003.

Claims and evidence

3 In essence the appellant claimed to fear harm and persecution because he was Muslim and perceived as a person with a political opinion "opposed to the majority Hindus and the government's discriminatory policy towards Muslims". He also claimed he would be perceived as a Muslim radical or sympathiser and persecuted on that basis. He claimed there was no effective protection for him in India, that the police did not provide protection to Muslims and were partisan in the violence, "covering up" for Hindus. Ultimately, however, the Tribunal acted on the basis that the claims made by the appellant in support of his application for a protection visa, were those articulated at the hearing before the Tribunal and not the more broadly ranging claims made in writing before the hearing.

4 The claims made at the hearing focused on the following matters. In August 2001, a Dalits colony (described as a group of lower caste people) in the appellant's neighbourhood, Adiram Pattinam, was set alight and burned down. The appellant claimed that in retaliation for this attack which was incorrectly perceived to have been perpetrated by Muslims, houses and shops of Muslims were attacked and set alight. Members of the appellant's family and one of his neighbours were arrested, detained and tortured on 2 September 2001 and held until 24 October 2001, and released on conditional bail. The police failed to protect Muslims and sided with Hindus. Following this, the appellant fled to Madras and stayed there until March 2002. The appellant claimed to have avoided reporting to the police when they were looking for him. He claimed that this was the only problem he had ever had with the police.

5 The appellant claimed his name was on a police list, seen by a detained neighbour, of people from Adiram Pattinam who were in Arab countries or the Northern part of India. The detainees were questioned about the list. They denied their involvement and the appellant's involvement with any radical groups. Fearing police brutality, the appellant decided to leave the country, his cousin acquiring travel documents for him for a large sum of money from a travel agent. He claimed to have left at midnight to avoid detection and that the money was for the travel agent to bribe officials at the airport so he could depart without event. Because of the detention of his family and neighbour in relation to the fire at the Dalits colony and the appearance of his name on a police list, the appellant feared that were he to return he would risk detention, interrogation and torture. He also feared that his wife and three young daughters may get caught up in the ethnic violence.

6 After the appellant fled he was informed that the police had inquired about him on several occasions, taking his wife into custody on 20 December 2002. She was released after a bribe of 100 thousand rupees was paid and on the condition that she inform the authorities immediately should the appellant return. The appellant claimed that the police wanted his wife to tell them his whereabouts and unless she did so "she would be in jail forever". He also claimed she was kicked while she was there. The Adirai Jamath Welfare Association, the body that paid the bribe, wrote a letter to the appellant dated 23 December 2002 advising him not to return to India or he would be tortured and detained under the "POTA Act" and telling him the police wanted to "interrogate" him about Muslim terrorist organisations. This association provided social services to Muslims and the appellant had been a member of it.

7 The appellant believed he had been implicated in the fire at the Dalits colony and claimed that if he returned to India he knew he would be imprisoned and placed in a special facility for these types of offences and claimed he knew he would be killed. The appellant claimed that because of his high blood sugar, if he were to be hit once he could be severely injured. He claimed that the further stress which would be caused by relocation would cause his psychological and physical state to deteriorate significantly. He claimed that he could not live elsewhere in India as the police were frequently looking for him.

8 The appellant provided a note from his doctor about his need for ongoing counselling and treatment, a letter from his daughter dated 3 August 2001 claiming the police had been to their house looking for him and the letter referred to above from the Adirai Jamath Welfare Association.

The Tribunal’s decision

9 The Tribunal concluded that the police may have had a legitimate non-Convention related reason for wanting to question the appellant and that the reason the appellant's wife was questioned by the police about his whereabouts was because they believed he might have had some knowledge about what had happened in the Dalits colony fire. The Tribunal accepted the appellant's wife was released the same day she was questioned, albeit on the payment of a bribe, but did not accept the appellant's claim that if the bribe had not been paid his wife would have been "kept in jail forever". The Tribunal did not accept that his wife was tortured or abused or that this was for a Convention related reason. The Tribunal found the appellant had embellished his claims with the objective of enhancing his claims to refugee status.

10 The Tribunal was satisfied that the chance the police would arrest, detain, torture or kill him, either deliberately or inadvertently during questioning (because of his poor health and low blood sugar) for a Convention reason was remote. By reference to independent country information, the Tribunal then, in essence, rejected the claim that there was no effective protection in India, accepting independent country information over the appellant's claims.

11 The Tribunal found the appellant was not a refugee.

The Federal Magistrate’s decision

12 The grounds in the application filed on 31 March 2003 in this Court and subsequently transferred to the Federal Magistrates Court, were as follows:

1.	The Tribunal erred in law amounting to jurisdictional error in finding that [the appellant] does not have a fear of serious harm amounting to persecution for a Convention reason if he returns to India, either now or in the foreseeable future:
2.	Exceeded its jurisdiction in making its decision to affirm the Respondent's decision;
3.	Constructively failed to exercise its jurisdiction in arriving at its decision; It is clearly shown that the Tribunal Member denied [the appellant] an opportunity to submit [his] explanations and materials in reply to the alleged adverse materials at the hearing on 24th of February 2003 by refusing to grant a date when requested by [the appellant] while failing to appreciate the fact that [the appellant] was without the assistance of an adviser during the hearing and the fact that [he] was sick and suffering from severe depression and trauma. If [the appellant] would have been given an opportunity to submit [his] explanations and materials in reply to the alleged adverse materials it could have led to a different decision by the Tribunal, therefore there is a jurisdictional error.
4.	The Tribunal failed to perform the duty imposed on it by the Migration act (section 425 (1)) to decide [the appellant]'s case on the material put to it and by conducting an appropriate enquiry there on.
5.	The Tribunal by denying the opportunity to [the appellant] to submit [his] explanations and materials in reply to the alleged adverse materials, the Tribunal had not fully listened to [the appellant]'s claims and explanations [the appellant] wish to put, thereby the Tribunal declined to exercise its jurisdiction and failed in its duty.
6.	The refusal to grant a date to [the appellant] to submit [his] explanations and materials in reply to the alleged adverse materials in the Tribunal is a significant one as it impaired [the appellant]'s ability to respond to the adverse information at the hearing.
7.	The said decision was made by the Tribunal was not a bona fide attempt to act in the Tribunal's authority.
8.	[The appellant] is entitled to a Protection Visa, which [he has] applied; and
9.	[The appellant has] a well founded fear of persecution in the country of [his] nationality i.e. India. [The appellant] is aggrieved by the decision because [he is] the applicant for a Protection Visa and it puts [him] in jeopardy of being forced to return to India where [the appellant believes] in good faith that [he] will be certainly persecuted.

By an amended application, filed on 12 June 2003, the appellant added the following ground:

1.	The Tribunal failed to accord procedural fairness ;

Particulars
The [Tribunal] Member before he made his decision failed to make aware of and provided those official cables and reports, and given an opportunity to me to respond to those adverse material in possession of the Tribunal categorised by the delegate of the [Minister] as the Part B Documents of his decision dated 28 June 2002.

13 Before the Federal Magistrate, the appellant claimed that he had been denied a date to submit an explanation and material in support of a claim and in reply to adverse material relied on by the Tribunal, that the Tribunal did not find in his favour and that the Tribunal had not acted bona fide. His Honour referred to the Tribunal decision and stated (at [4]):

[I]n its findings and reasons the Tribunal notes that it asked [the appellant] several times whether he had any other claims than those raised at the hearing flowing from the incident in the Dalits colony. [The appellant] had answered in the negative and the Tribunal proceeded on the basis that this was the only claim.

14 The Federal Magistrate found no error in the Tribunal's approach that if the police were seeking the appellant in relation to the Dalits fire, it would be because he was a witness. His fears of detention and torture were not well-founded in light of the appellant's story, the independent country information concerning the legal system in India and the political situation in the appellant's home state and generally.

15 In so far as the appellant alleged breach of procedural fairness, his Honour noted that this case was "covered by s 422B" of the Act. His Honour also noted that the appellant had not provided the court with evidence, other than an affidavit sworn by him, indicating that he either asked for more time to submit further evidence or that such time was refused. Without further evidence substantiating this claim, or evidence that such material might have influenced the Tribunal to make a different decision, his Honour concluded there was no evidence before him that the Tribunal had fallen into jurisdictional error.

Issues in the appeal and its disposition

16 The appellant filed an amended notice of appeal on 11 October 2004. He listed many "grounds". Excluding those which amount to no more than dissatisfaction with facts found, there are four grounds though none sought to identify error on the part of the Federal Magistrate. First, the appellant claimed his circumstances were similar to those found in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601. Secondly, s 474 of the Act was "ineffective as per the recent two decision[s] of the High Court of Australia". Thirdly, the Tribunal erred in law in failing to consider whether the appellant belonged to a particular social group. Fourthly, the Tribunal failed to disclose country information adverse to the appellant which was relied on to find against the appellant. The appellant did not file any written submissions in support of the appeal.

17 The respondent submitted the appellant was unsuccessful because of the view the Tribunal took of the facts, in particular its finding that the appellant had embellished his claims and that the chance that he would be persecuted by the police in India was remote. In relation to the appellant's claim to have been denied an opportunity to submit "explanations and materials" counsel submitted that in any event, even if more time had been requested, the Tribunal was not bound to grant it. As to the claim regarding the failure by the Tribunal to disclose adverse country information, the respondent submitted that the appellant must fail for the same reason the appellant failed in claiming a denial of time to submit "explanations and materials", namely, that the appellant had not established an evidentiary foundation for this contention. Furthermore, the respondent submitted that any country information would clearly fall within s 424A(3)(a).

18 I have read the reasons for decision of the Tribunal and the reasons for judgment of the Federal Magistrate. The Federal Magistrate characterised the basis of the appellant's claims as referable to his "political opinion" though it might be thought that they were referable to his "religion" perhaps even membership of a particular social group. The Tribunal simply and repeatedly spoke of "a Convention reason" without actually characterising the reason by reference to the five identified in the Convention. But nothing, in my opinion, turns on this point. What is clear is that the Federal Magistrate rejected all the bases the appellant seemingly raised and on which, arguably, the appellant was able to challenge the Tribunal's decision. It is not apparent to me that the Federal Magistrate erred in dismissing the appellant's application, nor is apparent to me that the Tribunal's decision is attended by jurisdictional error.

19 The appeal should be dismissed with costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated: 3 November 2004

The Appellant appeared in person
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	26 October 2004
Date of Judgment:	3 November 2004