FEDERAL COURT OF AUSTRALIA

NAHS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1468

NAHS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 880 OF 2002

MOORE J

6 DECEMBER 2002

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondent’s costs.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

REASONS FOR JUDGMENT

Introduction

1                     This is an appeal from a judgment of Driver FM of 1 August 2002, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) to refuse to grant the appellant a protection visa under the Migration Act 1958 (Cth) (“the Act”).

Background

2                     The appellant is a young man from a village near Calcutta. He arrived in Australia on a temporary business visa on 3 January 2000.  On 25 January 2000 he applied to the Department of Immigration and Multicultural Affairs (“the Department”) for a protection (Class XA) visa which was refused by a delegate of the Minister on 9 March 2000.  On 3 April 2000 the appellant lodged an application for review of the delegate’s decision.  The Tribunal affirmed the delegate’s decision not to grant a protection visa by a decision given on 30 April 2002.

3                     The Tribunal had before it the Department’s file (which included the appellant’s protection visa application), and the Department’s decision record.  The appellant gave oral evidence to the Tribunal on 21 March 2002.  The following is a summary of the claims of the appellant considered by the Tribunal.

4                     The appellant completed his secondary education in 1991.  Following three years of an industrial training program, he was awarded a diploma in hotel management, and in 1995 he was awarded a certificate in food services operation.  His employment certificates indicate that in March 1996 he had been employed as a chef for over a year at a hotel in Calcutta, and from July 1996 to December 1999 he was employed as a chef in Goa, which is approximately 2,000 kilometres from Calcutta.  He left his employment in Goa in December 1999 to pursue a “better opportunity”.  He is married with a son, and both his wife and child remain in India.

5                     In 1989, while he was still at school, the appellant became involved in the Congress Party, and in 1991 he became an active member.  His role in the party involved talking to people in his village about the party, and also campaigning for elections.  From 1993 to 1998 he was a local leader and elected representative to the Panchayet Samiti (district council).  During this time he was involved in work for the village, such as the building of roads.  In May 1998 he ran as a Congress Party candidate for Zila Parisad (a council of districts).  He was defeated at these elections. The appellant submitted to the Tribunal some documents said to be election papers, which supported his claims regarding his candidacy in both the Panchayet Samiti and Zila Parisad.  In the parliamentary elections which took place in November 1999, the appellant assisted in the campaign of another Congress Party member, Mr Khanra.  Mr Khanra was defeated in these elections.

6                     The appellant’s problems began following his defeat.  He had been oppressed and tortured by his political opponents (who he identified as members of opposing parties, namely the BJP, CPIM and TMC) on a number of occasions.  He had death threats made against him, and his shop was ransacked.  In August 1999 his opponents in the village, who had previously told him to leave politics, attacked him, breaking his leg and wrist.  Throughout this period, they also spoke badly of him, insulted him, and put up posters about him.  A shop he operated, along with a number of other shops in the area, was burned down by his political opponents in November 1999.  He stated that at this time, he decided to leave India.  At the hearing the appellant made a number of additional claims, including that his opponents accused him of crimes and there were pending cases against him as a result of these false accusations. 

7                     The appellant entered Australia on a passport issued in June 1994 for a period of 10 years.  The passport had previously been used to travel to Singapore and Bangladesh, and contained a single entry visa for Norway issued in September 1999, which had a qualification that no resident permit would be granted following the visa’s expiry.

8                     A number of documents were provided to the Tribunal by the appellant to support his claims.  These included a letter from Mr Khanra attesting to the appellant’s involvement with the Congress party, the appellant’s repeated assaults by his political opponents, the appellant’s failed attempt at election to the Zila Parisad, and the appellant’s assistance to Mr Khanra in the 1999 elections.  A letter from a Congress Party representative in the Legislative Assembly was also provided.  This letter stated that the appellant was a loyal and hardworking Congress Party member who had been forced out of India by members of other political parties.  Also included was a medical certificate dated March 2001, which stated that the appellant was treated in hospital as an outpatient for injuries in August 1999, and a complaint to police dated November 1999, which states that his political opponents had attacked him and ransacked his shop.

9                     The Tribunal questioned the appellant as to why his opponents would cause problems for him after he had been defeated, and not while he was in power.  The appellant replied that this was because he was still undertaking good work for his community, and he was also assisting Mr Khanra in the parliamentary elections.  The Tribunal also questioned the appellant concerning steps he had taken following the attacks and harassment at the hands of his opponents.  The appellant stated that he had gone to the police on a number of occasions but they had been unhelpful as they always support the party in power and will not help political opponents of that party.

10                  The Tribunal then addressed the issue of the appellant’s employment in Goa.  The appellant confirmed that he had worked in Goa prior to his departure from India, in addition to his work there in the period between 1996 to 1999.  He said that while working in Goa, he would return to the village during his leave periods (15 days per month), and visited the village several times per year in connection with his involvement in politics and to visit his wife and child, who remained in the village.  The appellant added that the tourist season in Goa only lasts for 6 months, and that he lived for 6 months in Goa and 6 months in his village.  The Tribunal raised the possibility that the appellant could have remained in Goa to get away from the problems he was having in the village.  The appellant replied that his opponents had been after him in Goa as well.

11                  The Tribunal accepted that the appellant had been involved with the Congress Party in the manner claimed, his representation in the Panchayet Samiti and his attempts at election to the Zita Parisad as a party candidate.  However it did not accept the appellant’s claims that he left India to avoid persecution by his political opponents.  It also did not accept that the appellant had spent much time in the village, noting that he had been working in a town which is approximately 2,000 kilometres away.  While the Tribunal did accept that the appellant was injured in 1999, it did not accept that this was the result of an attack by political opponents.  Similarly, the Tribunal accepted that the appellant’s shop may have been burned, however it did not accept that this was a result of specific targeting of the appellant by political opponents.

12                  The Tribunal noted that the appellant appeared to have been making arrangements to leave India prior to the alleged incidents occurring, based on his Norwegian visa.  It was also not accepted that the appellant was of adverse interest to the authorities (based on false allegations or otherwise), and in any event, the Tribunal stated that even if the appellant did have local problems, he could relocate within India.

13                  The Tribunal concluded the appellant was not an individual to whom Australia owed protection obligations.

Issues before the Federal Magistrate

14                  The appellant sought judicial review of the Tribunal's decision on the following grounds:

a)      the procedures that were required under the Migration Act 1958 (Cth) to be observed in connection with the making of the decision were not observed;

b)      the RRT ignored the merits of the case;

c)      the RRT did not take into consideration the real fear of persecution on religious and political grounds;

d)      the RRT made a number of errors to decide the fate of the applicant’s claims;

e)      the RRT misjudged the applicant’s claim;

f)       the RRT took into consideration irrelevant matters; and

g)      the RRT did not have any authorities to justify its decision.

15                  The matter came before Driver FM on 1 August 2002 and the appellant made both written and oral submissions.  The learned Magistrate noted in his judgment that the appellant was primarily concerned about securing a review of the merits of the decision of the Tribunal.

16                  The principle submission by the appellant was that the Tribunal should have verified his claims by make enquiries in India.  In dealing with this submission Driver FM noted that although the Tribunal was empowered to seek additional information, it had no obligation to do so.  Whether the Tribunal made an error in not exercising that power depends on whether the conclusion reached by the Tribunal was open to it based on the material it had before it.

17                  Driver FM went on to state that he was satisfied that the conclusions made by the Tribunal were open to it, based on the material they had before them.  In relation to the appellant’s claims that the Tribunal should have sought information from India, his Honour said, at [16]:

“…[the appellant] has not pointed to any particular information that might have been discovered in India that the RRT failed to pursue.  In the circumstances, I find that the RRT was under no obligation to pursue further inquiries in India as asserted by [the appellant].  In coming to that conclusion I also take into account the obligation on the RRT in s 420 (1) of the Migration Act to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and, relevantly, quick.

18                  Driver FM concluded by finding that the appellant had not demonstrated any error of law on the part of the Tribunal, either in the conduct of the proceedings, or the decision itself.  As such, his Honour also found that it was unnecessary to consider the operation of s 474 of the Act.

Issues in the appeal and their consideration

19                  A notice of appeal was filed in the matter on 21 August 2002.  It states:

The Appellant appeals from the whole of the judgement of the Honourable Justice FM Driver given on 1 August 2002. 

Grounds

1.         The honourable trial judge did not take into consideration a number of errors made by the Tribunal

The applicant was deprived of natural justice, as the applicant was not provided an opportunity to comment on materials which the RRT relied on to make its decision, which was not considered by the trial judge.

3.         The honourable judge also erred in considering that the tribunal had failed to take relevant documents into account without any adequate explanation.

4.         The Honourable trial judge erred in considering the relocation factor, as it is an irrelevant option for this particular case.

5.      The Tribunal on the face rejected the importance of the letters from the applicant’s political leaders in exercising its power unreasonably.  This was also not considered by the trial judge.

6.      The proceedings which was taken by the RRT to conclude its decision was erroneous and the Honourable trial judge did not consider it.

20                  Ultimately, this appeal can be resolved on a fairly narrow basis.  As noted earlier, judgment was given by the learned Magistrate on 1 August 2002.  It is to be recalled that his Honour took the approach that it was unnecessary to determine the effect of s 474 of the Act on the application he was considering and the issues raised.  On 15 August 2002, a specially constituted Full Court of this Court dealt with the effect of that section in NAAV Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 228.  It tolerably clear that the complaints made by the appellant about the approach adopted by the Tribunal, and the alleged errors of the learned Magistrate in dealing with those complaints, are of no importgiven the effect of s 474 as determined by the Full Court.  Neither a denial of procedural fairness nor any of the other matters of complaint raised by the appellant, would establish error of the type attracting what can conveniently be described as the Hickman principles.  I have reviewed the reasons of the Tribunal and, in my opinion, there is no basis for concluding that its decision and the approach it took to the appellant's application might attract those principles.

21                  Accordingly, the appeal should be dismissed with costs.

Associate:

Dated:              6 December 2002