NABT of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 137 (13 May 2002)

Last Updated: 23 May 2002

FEDERAL COURT OF AUSTRALIA

NABT of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 137

MIGRATION - whether primary Judge erred in holding that decision of Refugee Review Tribunal had not involved an error of law within the meaning of the Migration Act 1958 (Cth).

Migration Act 1958 (Cth) s 476

NABT OF 2001 V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NO. N 1529 OF 2001

BEAUMONT, CARR & SACKVILLE JJ

13 MAY 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1529 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NABT OF 2001 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	BEAUMONT, CARR & SACKVILLE JJ
DATE OF ORDER:	13 MAY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed, with 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	N 1529 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NABT OF 2001 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	BEAUMONT, CARR & SACKVILLE JJ
DATE:	13 MAY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

1 This appeal is from a judgment of Allsop J given on 26 October 2001, dismissing an appeal from a decision of the Refugee Review Tribunal ("the Tribunal") made on 29 June 2001, affirming a decision of the Minister's delegate not to grant the appellant a protection visa.

2 The appellant is 48 years old and a citizen of India. He arrived in Australia in September 1996 and lodged an application for a protection visa in October of that year. In April 1997, the Minister's delegate refused his application. The appellant then applied for a review of that decision, but in April 1998 the Tribunal affirmed the Minister's decision. The appellant then applied to this Court for judicial review of the Tribunal's decision. On 16 June 1999, Moore J set aside that decision and remitted the matter. A further hearing took place before the Tribunal in November 1999. On 29 June 2001, a differently constituted Tribunal, as mentioned, affirmed the Minister's decision refusing a protection visa.

3 The appellant was unrepresented before Allsop J and before us.

THE TRIBUNAL'S DECISION

4 The Tribunal noted that the appellant's claim for a protection visa arose out of his political and social views and activities in India and that his fears of persecution were based on his "political opinion" or "membership of a particular social group". Essentially, his claims were of mistreatment, detention and assault by Indian authorities and by hired agents of large corporate interests in Tamil Nadu. In addition, he claimed that wrong and baseless charges had been brought against him by the authorities and that some were still pending. The appellant claimed that there had been mistreatment of him and of his wife after the assassination of Rajiv Ghandi in 1991. He also claimed that he was threatened and assaulted as a result of his activity in opposing what he saw as harmful and corrupt private interests acting contrary to the interests of the poor, particularly in Tamil Nadu.

5 The Tribunal accepted that the appellant is from Madras and that his wife is a Sri Lankan Tamil and that while a student the appellant was an active member of the youth wing of an organisation called the Dravida Munnetra Kazhagam. But the Tribunal noted that this activity occurred twenty-five years ago, and is therefore relevant only in support of the appellant's claim that he had been politically active for a long time.

6 The Tribunal said that it had difficulty accepting several of the appellant's claims, including his claim to be a lawyer, his claim to be involved in various political groups, his claimed connection with the Naxalites, his claims of activism in relation to particular issues, his claims regarding the arrest and detention of his wife, and his claim of an ongoing interest in him by the Indian authorities.

7 However, whilst doubting that the appellant was a lawyer, the Tribunal said that it gave him the benefit of the doubt in this respect and proceeded on the basis that he was a lawyer.

8 The Tribunal further accepted that the appellant had belonged to the Tamil Liberation Army ("the TLA") for some years in the 1980s, but did not accept that the Tamil Tigers had sought to harm him or that they would now be interested in harming him some 15 years later.

9 The Tribunal was also prepared to accept that the appellant was a supporter of the Communist Party of India (Marxist/Leninist) ("the CPI"), but found that he was at a sufficiently low level so as not to cause a political interest to be a source of likely harm. The Tribunal found that the party did not pay him, or support him, from at least 1991.

10 The Tribunal found that the appellant would experience no adverse consequences as a result of his activities with the TLA and the CPI. It could not accept that the appellant was any more than an enthusiastic reader of left-wing and communist magazines, such as "New Democracy" and "New Culture". The Tribunal further found that the appellant was not involved with these magazines in the exposure of wrongdoing by the police and other authorities, as the appellant had claimed.

11 After examining the appellant's claims of assault, and arrest and of being targeted by interest groups and participants in the political process from approximately 1992, the Tribunal could not accept that the appellant had been arrested during the period 1976 to 1991 or in September 1994 as he had claimed.

12 The Tribunal also addressed the appellant's account of arrest and imprisonment in 1995, but found that account was not credible. The Tribunal said that, if the appellant had served a term of imprisonment as he had claimed, it was for a reason unconnected with the Refugee Convention. The Tribunal could not believe his claim that a judge had warned him not to get into politics again and to leave the country.

13 Turning to the claims of the outstanding charges against the appellant, the Tribunal was unable to accept that there were any outstanding charges, so that it could not accept that he would face court because of them, nor would he experience an unfair trial.

14 The Tribunal said:

"If the applicant was to be taken into custody, I do not believe it will be for the reason he has told of in his application, that of his political opinion and activities."

15 The Tribunal could not accept that the Indian police or security authorities had any continuing interest in the appellant for the reasons he advanced. Nor could it accept that any further charges had been or would be laid against him because of political activity. The Tribunal could not believe that the Indian police, security forces, the Tamil Tigers, or any other organisation with which the appellant claimed an association, would have any adverse interest in him because of Convention related matters.

16 The Tribunal did accept that the appellant had been arrested and mistreated in 1991 and that his wife may have been arrested and detained soon after Rajiv Ghandi's assassination, but it did not accept that the appellant's wife was required to report to the police regularly for as many years, as the appellant claimed, at least until 1997. Nor was it prepared to accept that she had been arrested and detained in 1993, or in September 1994.

17 Further, the Tribunal was not satisfied that the appellant had been struck off as a lawyer for a Convention reason.

THE DECISION OF THE PRIMARY JUDGE

18 Before the primary Judge the appellant sought to rely upon several grounds as a basis for judicial review. His Honour concluded that no ground had been established.

19 In relation to the first ground (s 476(1)(a) of the Migration Act 1958 (Cth) ("the Act")), Allsop J found that the reasons of the Tribunal reflected a genuine application by it to the task at hand and that there was no basis for finding that its approach had been irrational or unreasonable.

20 In relation to the second ground (s 476(1)(e) of the Act), Allsop J could find no error of law in the approach adopted by the Tribunal.

21 The third ground (s 476(1)(g) of the Act) was not sustained. Allsop J did not agree that there was no evidence or other material to justify the making of the decision.

22 His Honour held that the appellant was seeking impermissibly to re-agitate the facts of the matter and accordingly dismissed the application.

THE GROUNDS OF APPEAL

23 By his notice of appeal filed on 16 November 2001, the appellant contends that an error of law had been committed by the Tribunal, but no specific error was there identified.

24 However, by his written submission dated 9 May 2002, the appellant advances several contentions upon which he now relies in support of his argument that the Tribunal erred in law. Firstly, he says that his activities, which he contends should be construed as expressing a political opinion, and his subsequent persecution were not appreciated by the Tribunal. Secondly, the appellant challenges the Tribunal's approach to his claim to be a lawyer. Thirdly, the appellant says, in essence, that the Tribunal did not properly understand the significance of his long history of "political and social activism" in the present context. Fourthly, the appellant raises his evidence as to his arrest, charges, detention and imprisonment as proof of these events and, by implication, criticises the Tribunal's findings in this connection. Fifthly, the appellant seeks, essentially, to rely on the approach taken by Moore J to some aspects of the matter in his Honour's judgment. Sixthly, the appellant relies upon "First Information Reports" as proof of the circumstance that the Indian authorities are still interested in him, by reason of his political opinion.

CONCLUSIONS ON THE APPEAL

25 In my opinion, the primary Judge's approach to this matter was correct. In particular, I agree with his Honour's characterisation of the present application as one which seeks impermissibly to re-agitate matters that are in their character factual and not legal. I will however, given the circumstance that the litigant before us appears in person, address the six specific grounds mentioned in the applicant's submission dated 9 May 2002.

26 In my opinion, the first ground is no more than an abstract statement by way of an assertion that a legal error had been committed by the Tribunal in failing to construe the appellant's activities as a Convention-related political opinion. As I would read the submission dated 9 May 2002, the real basis for the appeal appears in the other five grounds.

27 The second ground, it will be recalled, relates to the appellant's claim to be a lawyer. In my view, this matter does not advance the position so far as the appellant is presently concerned. The Tribunal accepted, as has been noted, that the appellant had qualified as a lawyer. It did, as has already been mentioned, go on to find that although the appellant had been struck off, the motivation for the strike off was not Convention-related.

28 The third ground, it will be remembered, sought to rely on the appellant's long history of "political and social activism". It is clear, from the recitation I have made of the process of reasoning of the Tribunal, that the relevant history in this area was taken into account and considered by the Tribunal. Its conclusions, in my view, were grounded on factual considerations only, and no legal error appears in that connection.

29 The fourth ground now relied upon, relates to the evidence by way of proof of the appellant's arrest, charges, detentions and imprisonment. Again, as has been noted in the recitation of the Tribunal's process of reasoning, these issues, which were in character factual, were fully addressed by the Tribunal. In my view, no legal error appears.

30 The fifth ground, it will be recalled, related to the findings made by Moore J. Those findings were, of course, concerned with the earlier Tribunal decision. Allsop J, on the other hand, was exclusively concerned with the reasoning of a differently constituted Tribunal. For present purposes, the process of reasoning of the first Tribunal was not material.

31 Finally, the appellant seeks to rely on material in the "First Information Reports". This material is, of course, factual and, in the present context, does not involve, in my view, any error of law.

32 I would propose therefore that the appeal be dismissed.

CARR J:

33 I agree, for the reasons given by Beaumont J, that this appeal should be dismissed. I would only add this. Encompassed in what his Honour has described as the fifth ground of appeal is a complaint that the Tribunal did not correctly apply the legal definition of persecution, in that, as the appellant asserted, his arrest and mistreatment in 1991 was sufficient to constitute persecution. In my view, the alleged error pointed to by the appellant as part of the fifth ground, has not been established. I consider that the Tribunal did not err in law and that, once again, the appellant is seeking to raise essentially a factual matter.

SACKVILLE J:

34 It is somewhat unfortunate that a period of five and a half years has elapsed between the date the appellant applied for a protection visa and the hearing of this appeal. This length of time is explained, in part, by the fact that the appellant succeeded on his first application to this Court in having the matter remitted to the Tribunal. Be that as it may, the lapse of time cannot alter the fact that the issue on this appeal is whether the primary Judge erred in dismissing the application for judicial review of the Tribunal's decision made on 29 June 2001.

35 The only ground of appeal identified by the appellant in his notice of appeal is that the primary Judge erred in law by failing to find that the Tribunal had committed an error of law within the meaning of s 476(1)(e) of the Migration Act 1958. The appellant has not identified precisely the error of law that he claims the Tribunal committed, although his written submissions rather suggest that it may have been the Tribunal's failure to appreciate that his claim was that he was at risk of persecution for reasons of political opinion.

36 The primary Judge commented that he could not discern from the Tribunal's reasons any error of law in the approach adopted by it. I, too, am unable to discern any error in the Tribunal's approach. The Tribunal carefully analysed the evidence before it and made factual findings, a number of which were unfavourable to the appellant. On the basis of those findings, it concluded that the appellant did not have a well-founded fear of persecution for a Convention reason, including political opinion. The Tribunal did not make the error the appellant suggested it had. There is no basis, therefore, for holding that the primary Judge erred in dismissing the appellant's claim for judicial review.

37 As the presiding Judge has pointed out, the appellant raised a number of additional arguments in his written submissions. I agree with the presiding Judge that none of these arguments demonstrates error on the part of the primary Judge. In these circumstances, I agree that the appeal should be dismissed.

BEAUMONT J:

38 The order of the Court, therefore, is appeal dismissed.

39 The Court is of the opinion that costs must follow the event in this case, so that the order of the Court will be: appeal dismissed, with costs.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 21 May 2002

Solicitor for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	Mr R Bromwich
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	13 May 2002
Date of Judgment:	13 May 2002