FEDERAL COURT OF AUSTRALIA

NANS of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1385

NANS OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N669 of 2002

MADGWICK J

31 OCTOBER 2002

SYDNEY

THE COURT ORDERS THAT:

1.         The application is dismissed with costs.

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

REASONS FOR JUDGMENT

(revised from transcript)

HIS HONOUR:

1                     This is an application to the Court apparently seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed a decision of a delegate of the respondent Minister not to accede to the applicant’s application for a Protection (class XA) Visa, a class of visa which is available if the Minister is satisfied that Australia has protection obligations under the well known Convention relating to the status of refugees.

2                     The applicant is a national of India.  His claim is that he was active in the political party known as the Indian Union Muslim League and there were two other principally opposing parties in his region, the Communist Party of India (CPM) and the Bharatiya Janata Party (BJP). 

3                     The applicant’s story is that, arising out of electioneering events in the run up to the Federal parliamentary election in November 1999, some BJP electoral workers defaced and removed Muslim League posters.  The applicant told the police about this and attended the relevant scene.  Before the police arrived, BJP workers congregated where the applicant was and beat him up and cut him, necessitating a hospital visit.  This incident led to other political violence later in the evening, as a result of which a BJP worker was seriously injured and later died in hospital. 

4                     The BJP, according to the applicant, apparently blamed him and destroyed his home and his business premises (a textile shop) and the local Muslim League Party office were both set on fire.  Later he was badly beaten.  The applicant claims that he left his town on 3 March 2000 for another locality Trivandrum where he found employment with a film company as an “artiste”.  When the film company came to Australia to make a film the applicant came with them.

5                     The Tribunal Member comprehensively disbelieved the applicant.  She gave reasons for this disbelief.  Additionally she found that, as the applicant stated that he had been safe in Trivandrum and had come to Australia because the opportunity arose, “the applicant did not have a well founded fear of persecution in coming to Australia”.  She said that she was not satisfied on the evidence that the applicant genuinely feared persecution on return to India and she was also not satisfied that there was a real chance that the applicant would be persecuted upon return to India for any Convention reason.  In particular, she did not accept the contents of certain letters which the applicant produced as genuine and said that she considered them “to be produced for the sole purpose of strengthening the applicant’s claims and are self serving”.  There is nothing in what the Tribunal member has had to say about the applicant’s credibility which is so far fetched, remote or irrational as to indicate any error of law in her approach. 

6                     The applicant appeared unrepresented and it is not to be expected that he could distinguish very well between errors of law and errors of fact.  However, the matters of which he complains are entirely factual and, even if the Court had jurisdiction to intervene (c.f. s 474 of the Migration Act 1958 (Cth)), it would only be in rare cases that mishandling of the facts would amount to a legal error justifying the intervention of any Court that did have jurisdiction.  This case falls a long way short of that. 

7                     The application should be dismissed with costs.

Associate:

Dated:              6 November 2002