Yarlagadda v Minister for Immigration & Multicultural Affairs [2001] FCA 215

FEDERAL COURT OF AUSTRALIA

Yarlagadda v Minister for Immigration & Multicultural Affairs [2001] FCA 215

MIGRATION– application for a protection visa – review of decision of Refugee Review Tribunal – whether the Refugee Review Tribunal failed to consider relevant information in circumstances where the Tribunal had made adverse findings on credibility with respect to the substantial claim of involvement with the Peoples War Group Migration Act 1958 (Cth) Abebe v Commonwealth (1999) 162 ALR 1 applied RAMA DEVI YARLAGADDA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 1091 OF 2000 HELY J 21 MARCH 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1091 OF 2000

BETWEEN: RAMA DEVI YARLAGADDA

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: HELY J

DATE OF ORDER: 21 MARCH 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application for review 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 1091 OF 2000

BETWEEN: RAMA DEVI YARLAGADDA

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: HELY J

DATE: 21 MARCH 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant is a citizen of India who arrived in Australia on a visitor's visa on 8 May 1995. She applied for a protection visa on 4 July 1997, over two years after her arrival, on the ground that she feared persecution should she return to India because of her political activity. The Minister's delegate refused the application and this decision was affirmed by the Refugee Review Tribunal ("RRT") on 31 August 2000. The applicant seeks an order of review of that decision. 2 The applicant claimed before RRT that she was a leader and activist of the Radical Students Union ("RSU") at college level from 1979-1984. She claimed that the RSU was the youth wing of the Peoples War Group ("PWG"), apparently also known as The Communist Party of India – Marxist Leninist. She claimed that her involvement with those organisations ceased in 1991, but the problems which arose while she was a member of those organisations continued well after that date. Those problems included frequent arrests, torture and imprisonment at the hands of the police, as well as the laying of false charges against her. 3 RRT accepted that the applicant may have had some minor involvement with the RSU while she was a student. RRT said that it was "generously willing to accept" that: - the applicant may have been involved in student protests while she was at university and that she was involved in assisting peasants in surrounding areas when she was a student, possibly through RSU; and - the applicant may have been rounded up by the police on a few occasions as a result of RSU activities whilst she was a young undergraduate student, but the police had no continuing interest in her because she was always released without charge. The RRT did not, however, accept the remainder of her claims. 4 RRT did not find the applicant to be a credible witness, and except to the extent already indicated, did not accept that her claims were credible. On reviewing the applicant's claims, its conclusion was that "the bulk of the applicant's claims are concocted and cannot be relied upon". RRT found that the applicant "is of no continuing interest to the police anywhere in India" and was satisfied that if she were to return to India she would be able "to find employment and support herself independently", that is independently of her husband. 5 RRT noted the delay in seeking a protection visa, and that when first interviewed by her Department of Immigration & Multicultural Affairs ("DIMA") case officer, the applicant indicated that she did not wish to return to India because of problems with her husband. It was only after she met with the migration agent who prepared her application for a protection visa that she made claims relating to her involvement with RSU. 6 I do not propose to recite all of the claims which were made by the applicant, and rejected by RRT. They are dealt with in RRT's reasons for decision. The extent of the failure of the applicant to persuade RRT as to the merits of her case is reflected in the following finding at page 148-149 of the Relevant Documents ("RD"): "... the Tribunal finds that the applicant was not ever implicated in any violent activities of the PWG or any of its associated organisations at any time, nor that she has any court cases pending against her in relation to these charges. It follows also that the Tribunal does not accept that the applicant was tortured in any way by police when detained on these alleged charges. The Tribunal finds that the applicant's evidence in relation to her alleged involvement with the PWG and her being implicated in violent PWG/RSU activities has been concocted ..." 7 The applicant's written submissions in support of the order of review largely invite the Court to embark upon an impermissible re-determination of the merits of the applicant's claim. The assessment of the merits of the applicant's case is a matter for RRT, rather than for this Court. Those written submissions also seek to make a case that the applicant was badly served by the migration agent retained to assist her in the prosecution of her application for a protection visa. The applicant sought to expand upon those complaints in a statutory declaration made on 18 January 2001. I refused to receive that statutory declaration into evidence because the conduct of the migration agent has no bearing on the question of whether the applicant has made out one of the grounds of review specified in s 476 of the Migration Act 1958 (Cth) ("the Act"). 8 The Amended Application for an Order of Review filed on 18 January 2001 asserts that in determining the applicant's claim to have a well founded fear of persecution if she was returned to India, RRT failed to consider all substantial claims and all relevant information in support of them, and failed to deal properly, or at all, with the material before it. The subsequent paragraphs in the Amended Application constitute the particularisation of that general charge. I will deal with them seriatim.