NAWR v Minister for Immigration & Multicultural & indigenous Affairs [2004] FCAFC 25

FEDERAL COURT OF AUSTRALIA

NAWR v Minister for Immigration & Multicultural & indigenous Affairs [2004] FCAFC 25 MIGRATION – appeal from single Judge of the Federal Court – protections visa – where Tribunal requested further information – where applicant's request for an extension of time was refused – issue regarding failure to seek protection elsewhere not raised before primary Judge – appeal dismissed. Migration Act 1958 (Cth) s 424, s 425 Judiciary Act 1903 (Cth) Abebe v Commonwealth (1999) 197 CLR 510 cited NAWR V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 19 OF 2004 BEAUMONT, LINDGREN & TAMBERLIN JJ 10 FEBRUARY 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 19 OF 2004

BETWEEN: NAWR

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: BEAUMONT, LINDGREN & TAMBERLIN JJ

DATE OF ORDER: 10 FEBRUARY 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal 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 19 OF 2004

BETWEEN: NAWR

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: BEAUMONT, LINDGREN & TAMBERLIN JJ

DATE: 10 FEBRUARY 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT

THE COURT:

Introduction 1 The appellant was born in India on 20 May 1971. He left Chennai Airport on 7 September 2002, travelled to Singapore and then entered Australia on 12 September 2002 on a one month temporary business visa. On 8 October 2002, he lodged an application for a protection visa, indicating in the application that he had tertiary qualifications, that his occupation was that of a 'party worker' and that he had been self-employed from August 1995 to September 2002. He claimed that he had left India 'because of threat to my life'. In a Statutory Declaration which accompanied his application for a protection visa the appellant made various claims, including the following: · He was the youth secretary of the Dravida Munnetra Kazhagam ('the DMK') party, the opposition political party in Tamil Nadu and was very active politically. · The general secretary of his party was arrested on 29 June 2001, and strikes and riots then ensued; and the appellant was involved in a strike to protest about the arrest. · The police were after him, and have issued an arrest warrant; and he is running away from the police. · Party workers and supporters of the ruling party have also threatened him and tried to kill him by throwing a petrol bomb at him. · Party workers of the rival party and police searched his home and threatened his family. · He hid at a friend's place, and was too fearful to go outside – then he got a visitor's visa to Australia and came here. 2 On 22 October 2002, a delegate of the respondent Minister wrote to the appellant seeking further details of various matters mentioned in the application for a protection visa and the statutory declaration. The appellant responded to that letter on 12 November 2002. 3 On 10 December 2002, the delegate telephoned the appellant to obtain further information from him. On the same day the delegate decided to refuse the grant of a protection visa. 4 The appellant lodged an application to the Refugee Review Tribunal ('the Tribunal') on 2 January 2003. 5 The Tribunal wrote to the appellant requesting additional information from him on 4 August 2003. The appellant responded to that letter on 25 August 2003, seeking an extension of time, until 27 October 2003, in which to supply the relevant information. 6 On 26 August 2003, the Tribunal wrote to the appellant refusing the application for an extension of time. 7 The Tribunal handed down a decision on 30 September 2003 in which it affirmed the delegate's decision for, in essence, the following reasons: 'Despite being asked to do so, the [appellant] has provided no details to flesh out his claims. For example he has not said where or when key events in his statement of claims took place. Though he has had several months in which to collate relevant evidence, he has failed to do so. While the Tribunal understands that a person fleeing persecution might not be in a position to bring with him documents which conclusively prove his assertions, the Tribunal considers that, if he were a district level officer of the DMK, he would have been able to contact that party from Australia and seek some form of corroboration from that party. The Tribunal considers that, if the claimed events actually took place, he would be able to tell from his own memory where and when the alleged strike took place and where and when a petrol bomb was hurled at him. The [appellant] stated explicitly in his application form that there was no criminal investigation or charges pending against him. This contradicted what he said in his statement. Both statements were in the form of statutory declarations. The Tribunal asked the [appellant] to comment on this contradiction but he has failed to do so. On the scant information before it, the Tribunal is not prepared to accept the [appellant's] claims that he was an officer of the DMK, or that police and AIADMK [All India Anna Dravida Munnetra Kazhagam] officers have sought to harm him. Further, it is clear that the [appellant] was outside India in July 2002. This is evident from the fact that he applied for a visa in Sri Lanka. The [appellant] has withheld the full details of his travel from the Tribunal and from the Department by refusing to submit even copies of all pages of his passport. Since he left India in September 2002, it is obvious that he returned to India at some stage. Given his advice that he has never been deported from any country, the Tribunal infers that his return to India was voluntary. The Tribunal specifically asked the [appellant] to explain why, if he feared persecution in India, he returned to that country. He is on notice that his failure to seek protection in either Sri Lanka or Singapore and his voluntary return to India from Sri Lanka calls into question the genuineness of his stated fears of persecution, but he has not responded. In all the circumstances, the Tribunal finds that the [appellant's] stated fears of persecution in India are not genuine. The Tribunal therefore finds that the [appellant] does not have a well-founded fear of persecution in India.' 8 The appellant sought review of the Tribunal's decision under s 39B of the Judiciary Act 1903 (Cth), but a Judge of the Court dismissed the application. 9 The appellant now appeals from that judgment.