FEDERAL COURT OF AUSTRALIA

NAHD v Minister For Immigration And Multicultural And Indigenous Affairs

[2003] FCA 643

NAHD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1429 OF 2002

BENNETT J

25 JUNE 2003

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs.

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

EX TEMPORE REASONS FOR JUDGMENT

1                     On 30 December 2002, the applicant filed an application under s 39B of the Judiciary Act 1903 in relation to a decision of the Refugee Review Tribunal (‘Tribunal’), made on 21 November 2002, affirming a delegate of the respondent’s decision to refuse to grant a protection visa to the applicant.  The applicant is seeking to set aside the decision of the Tribunal and have the matter remitted to the Tribunal for reconsideration in accordance with the law.   The only grounds stated in the application are that the tribunal exceeded jurisdiction and erred in law in arriving at its decision. 

background

2                     The applicant is a citizen of India and was born on 27 July 1965.  In August 2000, he left India and travelled to New Zealand, returning to India in April 2001.  The applicant left India a second time on 16 June 2001 and arrived in Australia on 17 June.  On 31 July 2001, he applied for a protection visa.  On 28 November 2001 a delegate of the respondent refused the application. On 28 December 2001, the applicant sought a review of the delegate’s decision by the Tribunal and the Tribunal affirmed the delegate's decision on 21 November 2002.

the tribunal’s decision

3                     The Tribunal accepted that the applicant has a political opinion that is pro-Sikh and that he favours the establishment of an independent Sikh nation of Khalistan.  The Tribunal accepted the applicant's evidence that he was involved with the Akali-Dal (Mann) party and that, even though the work he did for that party was menial and non-political in nature, a pro- Akali-Dal (Mann) opinion has been imputed to him.  The Tribunal was not satisfied, however, that the applicant experienced persecution or faced persecution over these matters. The country information before the Tribunal showed that:

(a)                Sikhs may practise their religion in India without restraint;

(b)                pro-Sikh even pro-Khalistan political opinions can be freely expressed; and

(c)                supporters of the Akali-Dal (Mann) party are free to promote their political views/ambitions in conformity with Indian law and if a supporter is subject to persecution from rival parties or other agent then he has recourse through the Indian legal system. Furthermore, the head of the Akali-Dal (Mann) party holds a seat in the national parliament.

4                     The applicant also claimed that he came from a family of Sikh freedom fighters which was ‘close’ to Jarnail Singh Bhindranwale, a Sikh extremist and that, if he were forced to return to India, he would be persecuted as a Sikh militant.  He claimed that the Indian police had killed his brother.  The Tribunal was not satisfied that the applicant had a political profile that would cause him to be harmed. The applicant’s own evidence was that he had not been engaged in violence and the Tribunal was not persuaded that the applicant was an activist or that he would be regarded as such or that he would have been viewed as an associate of the militant Bhindranwale.

5                     The applicant’s claims at the Tribunal hearing conflicted to some extent with his written claims. For example, at the Tribunal hearing the applicant claimed to belong to the Surjeet Singh Farmers’ Union. In the applicant’s written submissions he claimed to be a member of the Bhartia Kishan Union. The Tribunal states that the applicant could not explain why there was no mention of the Surjeet Singh Farmers’ Union in his written claims or what he meant by having referred to the Bhartia Kishan Union in those claims. While accepting the applicant's evidence as to the work he had done in India for ‘whatever “union” he claimed to belong to’, on the basis of the independent country information before it, the Tribunal was not satisfied that the applicant would have been persecuted for this work.

6                     The Tribunal further had regard to the time the applicant spent in New Zealand, the fact that he did not seek protection in New Zealand and the fact that the applicant did return to India for a short time.   The Tribunal stated that the applicant's omission in applying for protection in New Zealand, where protection was available, raised significant questions about whether he left India to seek protection.

7                     In summary, having considered all of the evidence, the Tribunal did not consider that the applicant was a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees (done at Geneva on 28 July 1951) as amended by the Protocol relating to the Status of Refugees (done at New York on 31 January 1967) (‘Convention’) and accordingly, that he does not satisfy the criterion set out in section 36(2) of the Migration Act 1958 (Cth) (‘the Act’) for a protection visa. The Tribunal was not satisfied that the applicant had a well founded fear of persecution as a Sikh in India for any of the Convention reasons and considered that he left India and travelled abroad for reasons unconnected to the Convention. The Tribunal's conclusion was based on the facts of the case before it and in part on the credibility of the applicant. 

the appeal

8                     The applicant appeared in person, assisted by an interpreter. The applicant said that he had not read or understood the Tribunal's decision and was consequently unable to point to any errors in that decision.  No written submissions were received from the applicant in advance of the hearing.  When the applicant was asked if there were any matters he wished to put to the Court, he stated that the matters that he put to the Tribunal were true and asked the Court to grant his visa because his children and family have problems in India.

9                     As a result of a decision in Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 195 ALR 24 unless the applicant can establish or the Court determines that there is an error which amounts to a ‘jurisdictional error’, then section 474 of the Act applies and the Court cannot grant the relief sought. The applicant has not pointed to any error of law, or any excess of jurisdiction on the part of the Tribunal.  The Tribunal's conclusion was in part based on an assessment of the credibility of the applicant. Such an assessment is a function committed to the Tribunal and not a function committed to this Court: NABT v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 522. The Tribunal's conclusion was also based on the facts of the case before it.  The Tribunal found that the applicant did not establish that he would be persecuted in India or that such a fear, if it existed, was well founded.  This was solely a question of fact for the decision maker: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407. 

10                  The applicant has not pointed to any matter that could raise the question of a jurisdictional error and I am satisfied that there is nothing in the decision of the Tribunal that raises a jurisdictional error. Accordingly, I dismiss the application and order the applicant to pay the respondent's costs.

Associate:

Dated:  14 July 2003