NADK v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 269

FEDERAL COURT OF AUSTRALIA

NADK v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 269 MIGRATION – application for protection visa – no principle of law raised.

Migration Act 1958 (Cth) NADK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 1665 of 2001 MOORE J 19 MARCH 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1665 of 2001

BETWEEN: NADK

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MOORE J

DATE OF ORDER: 19 MARCH 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application 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 1665 of 2001

BETWEEN: NADK

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MOORE J

DATE: 19 MARCH 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT

Introduction 1 This is an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 6 December 2001 affirming a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"), refusing to grant the applicant a protection visa. The criterion for the grant of such a visa is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees of 28 July 1951 as amended by the Protocol Relating to the Status of Refugees of 31 January 1967 ("the Convention"). At the hearing of the application on 13 March 2002, I ordered that the application be dismissed with costs. These are my reasons.

Background 2 The applicant, who is a citizen of India, arrived in Australia on 1 January 1998 on a student visa. On 2 May 2000 he lodged an application with the Department of Immigration and Multicultural Affairs for a protection visa under the Migration Act 1958 (Cth) ("the Act"). On 8 June 2000 a delegate of the Minister refused to grant a protection visa and 3 July 2000 the Tribunal affirmed the delegate's decision.

The Tribunal's reasons 3 In a section in its reasons for decision headed "Claims and Evidence", the Tribunal set out the claims made by the applicant in his application for a protection visa and written submissions in support of it. The applicant was invited to give oral evidence at a hearing before the Tribunal, but declined. As a result, the Tribunal reviewed the decision on the material before it, a summary of which is set out below. 4 The applicant was born in 1978 in Jamoo Kashmir, India. He is a Hindu and resided in Gurdarpur, in the Punjab region of India, until his departure for Australia in 1998. He was not employed at any time while living in India. 5 In the years prior to 1993 the applicant and his family were vocal opponents of the violence perpetrated by militants who were seeking an independent state of Khalistan. After the death of two uncles while they were attending protest rallies, the applicant and his family desisted from any further demonstrations. 6 In 1997 the applicant's brother was abducted. When the applicant protested vehemently against this act, he was subjected to numerous incidents of persecution. In fear of further repercussions he fled to Australia. The situation in the area since his departure has remained the same, with his family recently being asked about his whereabouts. For these reasons, he fears returning to India. 7 The Tribunal set out its findings in a section titled "Findings and Reasons". It was satisfied about the applicant's citizenship. It addressed the claims made by the applicant in relation to the persecution he said he had suffered. It found itself unable, however, to establish the relevant facts in view of the lack of detail provided by the applicant. By reference to independent country information, the Tribunal considered the state of the Punjab area at the time of the applicant's claimed persecution, and said: "(T)he Tribunal accepts independent country information referred to in the Department's decision, that life in the Punjab returned to normal some years ago now and most of the militants have been wiped out, as it is consistent with more current information for example that Punjab 'continues to witness peace for the eighth consecutive year after the terrorist-secessionist movement for Khalistan was comprehensively defeated in 1993." 8 In light of the above the Tribunal considered it implausible that militants would recently have enquired after his whereabouts and concluded that the applicant was not a person to whom Australia had protection obligations under the Convention. It affirmed the decision not to grant a protection visa.

Issues raised in the application for judicial review

9 At the hearing in this Court, the applicant appeared for himself. My own reading of the Tribunal's reasons did not reveal any obvious judicially reviewable legal error (putting to one side the effect of s 274 of the Act). Nor did the applicant identify any such error. The essential complaint the applicant made at the hearing in this Court was that he had not been notified by his migration agents of the hearing before the Tribunal and did not attend. Documents in the green book indicate that the applicant was advised through his agents of the hearing date. The applicant had nominated the agent and identified their address as the address for service in his application for review by the Tribunal. Whether, as a matter of fact, the migration agents did not discuss the hearing with the applicant, as the applicant asserted from the bar table, did not appear to be of any legal relevance in these particular proceedings. 10 As no ground of judicial review had been made out, I dismissed the application and ordered the applicant pay the respondent's costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate: Dated: 19 March 2002 Solicitor for the Applicant: The applicant appeared in person with the aid of an interpreter.

Counsel for the Respondent: S Lloyd

Solicitor for the Respondent: Sparke Helmore

Date of Hearing: 13 March 2002

Date of Judgment: 13 March 2002