NAOF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1265

FEDERAL COURT OF AUSTRALIA

NAOF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1265 NAOF of 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N678 of 2002 JACOBSON J 16 OCTOBER 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 678 of 2002

BETWEEN: NAOF OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT JUDGE: JACOBSON J

DATE OF ORDER: 16 OCTOBER 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the costs of the proceedings. 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 678 of 2002

BETWEEN: NAOF OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: JACOBSON J

DATE: 16 OCTOBER 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT Introduction 1 This is an application for review of a decision of the Refugee Review Tribunal ("the RRT") handed down on 20 June 2002 affirming a decision of a delegate of the Minister not to grant the applicant a protection visa. The decision of the delegate was dated 14 March 2001. The application for review by the RRT was lodged on 12 April 2001. 2 The application for judicial review was filed on 10 July 2002. It does not specify the statutory provisions under which the review is sought. Nor does it point to matters, which could give rise to judicial review under the relevant statutory provisions. Thus, the application is not in proper form. However, I propose to deal with the matter as if all necessary formalities had been complied with. 3 Accordingly, I propose to treat the application as though it seeks to invoke the provisions of Part 8 of the Migration Act 1958 (Cth) ("the Act") and s 39B of the Judiciary Act 1903 (Cth). 4 The application must therefore be governed by the amendments, which came into effect on 2 October 2001. Accordingly, the decision under review is to be treated as a privative clause decision as defined in s 474 of the Act. Judicial review is available only to the extent to which the Court's jurisdiction is not excluded under the privative clause. The applicant's claims 5 The applicant is a citizen of India. She is an ethnic Telugu and a Christian. She qualified as a nurse in India. The applicant came to Australia on 21 October 1998 on a student visa, which was valid until 29 October 2000. 6 The applicant departed India legally on a passport issued in her own name and obtained without any apparent difficulty on 30 April 1998. However, she claimed to have paid a bribe of $US 800 to an immigration officer at the airport in India in order to leave the country without problems. 7 Four days prior to the expiry of her student visa, ie, on 25 October 2000, the applicant lodged an application for a protection visa. 8 She claimed to have a well-founded fear of persecution, which though not specifically linked to a Convention ground, should be taken to have been a claim based upon her political opinions. She relied upon a number of matters to support her claimed fear of persecution. 9 The applicant claimed that during her period as a student she became an active member of a radical Communist group affiliated with the student wing of the People's War Group ("the PWG"). The applicant said that her father was a member of the PWG and that he had disappeared in 1995. She also said that her mother had been beaten to death in police custody in 1982. 10 The applicant claimed to have been arrested by the police on three occasions. The first was in 1994. She claimed to have been arrested on this occasion while treating PWG members in the forest. She said that she was tortured, taken to the District Court in Karim Nagar and was gaoled. She claimed that she was released on bail but that the case was still pending at the time when she gave evidence before the RRT. 11 The second arrest was said to have been in 1996 when the applicant was working as a nurse at a hostel in Hyderabad. She claimed that the police seized PWG magazines from her room and that they arrested and beat her. She said that she was gaoled for two months but was then released on bail. She said that, as with the 1994 case, this case was still pending. 12 The applicant claimed to have been arrested on a third occasion in 1998. This claim was not made before the delegate but was put before the RRT. The decision of the RRT 13 The RRT made a strong finding that the applicant was not a credible witness. The RRT found that the applicant's claims were fabricated and, accordingly, the RRT did not accept the claims as being true. 14 The RRT gave reasons for rejecting each of the applicant's claims. Before doing so, the RRT made the following observations:- "At hearing before me the applicant was vague and unconvincing in her evidence. She could give little detail about events she claimed to have been involved in, and could give virtually no details of matters that she claimed happened to her. In particular she was vague as to: when she was arrested (first saying that it was only twice in 1994 and in 1996 and then later claiming a third arrest only months prior to her coming to Australia in 1998); what the charges were (being unable with any certainty to detail what they were); and whether she in fact appeared in a court. These matters had to be repeatedly asked of her with limited success." 15 The RRT found that, on independent evidence, it would not be possible for a person with an outstanding criminal record to obtain a legitimate passport in her own name. The RRT therefore found that it could not accept the applicant's evidence that her 1994 charges were still outstanding because she had obtained a legitimate passport in 1998. 16 The RRT did not accept the applicant's evidence of the 1996 arrest. The reason for this was that the RRT did not consider it likely that she would have been charged with anything for having treated, as a junior nurse, a person later discovered to be a PWG member. 17 As to the 1998 arrest, the RRT did not accept the applicant's evidence because the dates when she said she was in gaol were inconsistent with other evidence given by her. 18 The RRT gave other reasons for rejecting the applicant as a witness of truth. First, the RRT pointed to the delay in lodgement of the protection visa application. Second, the RRT noted that although the applicant had produced extensive documentation as to her education and work history, she had not provided any documents relating to her two claimed court appearances. The RRT considered that the applicant had had ample opportunity to obtain such evidence and it came to the view that no such documents existed. 19 Finally, the RRT found that it was open to the applicant to relocate to an area of India other than the area in which she had previously lived. Decision 20 The grounds upon which the applicant seeks review are set out in her affidavit sworn on 10 July 2002. The effect of the affidavit is that the applicant seeks to challenge the factual findings made by the RRT. She says that she has a well-founded fear of persecution and that her life will be in danger if she returns to India. She says that she cannot relocate because she cannot speak the Hindi language. 21 The applicant addressed me orally. However, she did not raise any matter, which was not referred to, in her affidavit. 22 The findings of the RRT were open to it. The RRT gave reasons, which supported its decision to reject the applicant's claims. An application for judicial review is not a merits review. There is no claim before me of any error of law. It is unnecessary to consider the effect of the privative clause. 23 Accordingly, the orders, which I propose to make, are that the application is to be dismissed with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson