NADD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1438

FEDERAL COURT OF AUSTRALIA

NADD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1438 NADD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 667 OF 2003 ALLSOP J 19 DECEMBER 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 667 of 2003

On appeal from a Magistrate of the Federal MagistrateS Court of Australia

BETWEEN: NADD

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE OF ORDER: 19 DECEMBER 2003

WHERE MADE: SYDNEY

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.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 667 of 2003

On appeal from a Magistrate of the Federal MagistrateS Court of Australia

BETWEEN: NADD

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE: 19 DECEMBER 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT

1 On 15 September 2003 this appeal was listed for hearing before me. It is an appeal from a Federal Magistrate ([2003] FMCA 203) which the Chief Justice has directed, under s 25(1A) of the Federal Court of Australia Act 1976 (Cth), be heard by a single Judge of the Court. 2 When the appeal was called on for hearing on 15 September 2003, there was no appearance by or on behalf of the appellant. After having had the matter called, I dismissed the appeal and delivered ex tempore reasons: [2003] FCA 976. 3 On 25 September 2003, the appellant telephoned my chambers having received a copy of the orders and reasons of 15 September 2003. He asked that the matter be relisted. The matter was relisted on 28 October 2003. On that day, the appellant said that he had not received a letter from my chambers concerning the Chief Justice's direction under s 25(1A). He said that he did not think in those circumstances the matter would be proceeding on 15 September 2003. 4 There was an oversight on my part. The parties were not informed of the Chief Justice's direction as I had indicated they would be. Thus, on 28 October 2003, I set aside the orders made on 15 September 2003 and set the matter down for hearing again. 5 The appellant filed further written submissions; they were in a form similar to that which had been previously filed. The appellant did not add orally to his written submissions when the matter came on for hearing again on 21 November 2003. 6 The following reasons make liberal use of the terms of my reasons published on 15 September. It should not be thought, however, that that reflects my giving the appellant's submissions other than careful further attention. 7 The appellant is an Indian citizen from the State of Tamil Nadu in south east India. He is a Muslim. He arrived in Australia on 27 August 2001 and lodged an application for a protection (class XA) visa on 25 September 2001. On 29 December 2001 a delegate of the Minister refused his application for a protection visa. On 14 January 2002 the appellant sought review by the Refugee Review Tribunal (the Tribunal). The Tribunal conducted a hearing on 6 September 2002, and on 11 September 2002 made a decision affirming the decision of the delegate of the Minister, which decision of the Tribunal was handed down slightly later, on 2 October 2002. On 28 October 2002, the appellant filed an application in the Federal Court Registry seeking review of this decision of the Tribunal under s 39B of the Judiciary Act 1903 (Cth). The grounds of review were: (a) that the Tribunal had a pre-determined view of the matter, that is, bias: and (b) a lack of good faith. 8 The matter was remitted to the Federal Magistrates Court and on 15 May 2003. Raphael FM dismissed the application. 9 The notice of appeal to this Court from the orders of the Federal Magistrates Court directed itself to the decision of the Tribunal, not any error in the Federal Magistrate. It read as follows, correcting some obvious grammatical and textual errors: The decision-maker had identified the wrong issue, asking himself the wrong question, ignoring relevant material, making erroneous findings and reaching a mistaken conclusion thereby committing an error of law constituting jurisdictional error. 10 I take the asserted error of the learned Magistrate to be failing to draw these entirely non-specific conclusions. 11 In the notice of appeal there was no complaint that the Magistrate erred in failing to conclude that the Tribunal was biased or did not approach the matter in good faith. However, the appellant's submissions filed in this Court re-asserted these matters. 12 The claims of the appellant were set out in a four-page statement dated 4 September 2001. They were summarised by the learned Federal Magistrate at [3] to [5] of his reasons as follows: [3]The applicant claimed that he had a well-founded fear of persecution for convention reasons based upon the fact that as a Muslim person of Tamil ethnicity he provided medicines and material for uniforms to an associate in Columbo which he accepted must have been for the use of the LTTE. The applicant claimed that this action of his was discovered by the authorities in Tamil Nadu and he was arrested and detained for three or four days. He claimed that he was mistreated while in detention and a friend was required to pay a bribe to have him released. [4]The applicant claims that he relocated to his uncle's house about 60 kilometres away from his own home and although the police came searching for him, they did not discover him, or if they were aware of his whereabouts he was able to bribe them not to arrest him again. In about July 2001, the applicant applied for and received a passport in his own name and he left Chennai Airport on that passport on 27 August 2001. He claims that he was not arrested then because he had paid money to a friend who had bribed officials at the airport and maybe the police as well. [5]The applicant informed the Tribunal that he believed that he would be arrested in [sic] he returned to India for what he described as a non-bailable offence. In response to questions from me, he indicated that the non-bailable offence that was referred to in his submissions was the same offence for which he had originally been charged and in respect of which he had not yet gone to Court. 13 At the Tribunal hearing, and before the Federal Magistrate, the appellant also claimed his entitlement to a protection visa on the basis of his religion. The Magistrate dealt with these claims at [6] of his reasons which were in the following terms: [6] The applicant also claimed asylum on the basis of a well-founded fear of persecution for reasons of religion, namely his Muslim religion in India. He claimed that Muslims were indirectly harassed and received harsher penalties from the courts even for minor offences. However, his claims were general in nature and did not refer to any specific instances of persecution to himself. 14 The Tribunal's findings were brief. It accepted some of the appellant's evidence as set out in [7] of the learned Magistrate's reasons which were in the following terms: [7]The Tribunal dealt with the claim in a short expression of findings and reasons between [CB 75 and 76]. The Tribunal accepted the applicant's claim that he was a supporter of the LTTE and sent medicines and material for uniforms to Columbo. The Tribunal accepted that the LTTE has been illegal since the assassination of Rajiv Ghandi. The Tribunal accepted that the applicant was arrested in mid 2000 and detained for a few days and that he was mistreated. The Tribunal accepted that between that time and his departure in August 2001, he was able to avoid arrest through living only 60 kilometres from his home. The Tribunal noted that the applicant was able to leave India on a passport in his own name issued in August 2000 through Chennai Airport. 15 However, the Tribunal concluded, significantly based on country information, that the appellant would not have been able to leave India on his own passport if he had been a genuine fugitive from the Tamil Nadu Police or if he was at any risk of being arrested. The learned Federal Magistrate dealt with this issue at [12] and [13] of his reasons as follows: [12] The Tribunal had before it certain country information concerning the ability to leave India by air and the nature of warrants for arrest. It relied on that evidence and the fact that the applicant had managed to bribe his way out of the first arrest situation and had not been rearrested in over a year. The Tribunal came to the conclusion that the applicant was not a genuine fugitive from the Tamil Nadu police and therefore presumably not the sort of person who could be described as a terrorist and therefore likely to the be subject of a national arrest warrant. [13] The conclusion reached by the Tribunal was capable of being reached upon the evidence before it and does not indicate in any way that the Tribunal came to the matter with a closed mind or a view incapable of alteration. There is nothing in the questioning of the applicant revealed in the reasons for decision that indicates a predisposition against him. 16 The approach of the learned Magistrate was directed significantly to the issues before him: bias and lack of good faith. However, he also said that the conclusion reached by the Tribunal was one capable of being reached on the evidence. I agree. 17 The Tribunal also dealt with the matter on the basis of its being wrong in its conclusion about the Tamil Nadu Police. The learned Magistrate dealt with this at [14] of his reasons as follows: [14] The Tribunal does go on to complicate the matter in the paragraphs commencing – "If I am wrong about this". At first sight those paragraphs appear illogical, but on more careful reading they could be restricted to the Tribunal being wrong solely about being wanted by the police. There is some evidence in the reasons for decision which would suggest that it is possible that a person wanted in one State would not be wanted in another, and it would follow from that that a fugitive in one State could return to another part of India and live there safely without further risk of arrest In any event, the two paragraphs to which I refer no more evidence lack of bona fides than any other paragraph. 18 Whilst I share some reservations about this body of findings that evidently the Magistrate had, I see no error in the approach of the learned Magistrate to considering this part of the Tribunal's reasons. 19 The appellant in his written submissions stated that the Tribunal must have been biased to conclude as it did, having accepted the various elements of the appellant's evidence reflected in the Tribunal's reasons. I reject that submission. 20 The findings of the Tribunal are brief but the essential fulcrum of the reasons is its conclusion that the appellant would not have been able to leave India in the way he did if he was in any danger of arrest by the Indian authorities. 21 The submissions of the appellant seek to persuade the court also of the merits of the claim for asylum. To the extent that they do this they are urging upon the court a course which is not open to it and I refuse to engage in my own process of fact finding based on country information and the appellant's own evidence. 22 The appellant also sought to say that various relevant materials were overlooked by the Tribunal and so, it was submitted, relevant material was not taken into account. This is not the place to elaborate upon the distinction between matters which, pursuant to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, can be said to be compulsory for the Tribunal's consideration and general questions of evidentiary material said to be important. It is sufficient to dispose of the matter to say that there is no basis to conclude here that the Tribunal did not attend to all relevant country information and all relevant material put to it and before it for the disposition of the appellant's case. 23 One particular piece of country information said to be ignored was at page 94 of the Court materials which was a page of country information being part of the India Assessment October 2001 which, one-third of the way down the page, has the heading "Treatment of Returned Asylum Seekers". The premise for the relevance of this material, however, is a factual circumstance contrary to the Tribunal's findings - that the appellant is wanted by the Indian authorities. The Tribunal concluded that he was not. Thus, on its face, this country information was not inconsistent with the way the Tribunal approached the matter. As I have said, there is no basis for me to conclude that the Tribunal did not take into account and weigh this very piece of country information. 24 It was submitted that the Magistrate and the Tribunal both failed to deal with the appellant's claim for persecution as, in effect, a sympathiser of the Tamil Tigers. The claims of the appellant were in his statement and as reflected by the answers which he gave to the Tribunal as set out in the Tribunal's reasons. The approach of the Tribunal was to reject the assertions of the appellant that he was at risk of persecution upon his return to India. This is a conclusion wide enough to comprehend the appellant's position as a so-called sympathiser, as distinct from some participant in Tamil Tiger activities. Having read the material in the court book I can see no basis to conclude that the Tribunal failed to deal with any way of putting the appellant's claims which were on the papers or orally before the Tribunal: cf Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; and Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244, 245[1] and 259 [42]. Thus, I do not think that it can be said that there was a failure to address the appellant's claims as reflected in the material before the Tribunal and so, in this way, there was no apparent failure to deal with what would be compulsorily relevant material. 25 Having examined the Tribunal's reasons and the material before it as well, as the reasons of the learned Magistrate at first instance, I see no error, jurisdictional or otherwise, which might be sufficient for the invocation of s 39B(1) or s 39B(1A)(c) of the Judiciary Act 1903 (Cth). In these circumstances it is unnecessary for me to consider what might in other circumstances be the inter-relationship between those sections and s 474 of the Migration Act 1958 (Cth). 26 Being unable to identify any error from the learned Magistrate the appeal shall be dismissed and I order that the appellant pay the respondent's costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate: Dated: 19 December 2003

The Appellant appeared in person

Counsel for the Respondent: Mr T Reilly

Solicitor for the Respondent: Blake Dawson Waldron

Date of Hearing: 21 November 2003

Date of Judgment: 19 December 2003