NAHS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1468

FEDERAL COURT OF AUSTRALIA

NAHS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1468 NAHS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 880 OF 2002 MOORE J 6 DECEMBER 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 880 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN: NAHS

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MOORE J

DATE OF ORDER: 6 DECEMBER 2002

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 880 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN: NAHS

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MOORE J

DATE: 6 DECEMBER 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT

Introduction 1 This is an appeal from a judgment of Driver FM of 1 August 2002, dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") to refuse to grant the appellant a protection visa under the Migration Act 1958 (Cth) ("the Act").

Background 2 The appellant is a young man from a village near Calcutta. He arrived in Australia on a temporary business visa on 3 January 2000. On 25 January 2000 he applied to the Department of Immigration and Multicultural Affairs ("the Department") for a protection (Class XA) visa which was refused by a delegate of the Minister on 9 March 2000. On 3 April 2000 the appellant lodged an application for review of the delegate's decision. The Tribunal affirmed the delegate's decision not to grant a protection visa by a decision given on 30 April 2002. 3 The Tribunal had before it the Department's file (which included the appellant's protection visa application), and the Department's decision record. The appellant gave oral evidence to the Tribunal on 21 March 2002. The following is a summary of the claims of the appellant considered by the Tribunal. 4 The appellant completed his secondary education in 1991. Following three years of an industrial training program, he was awarded a diploma in hotel management, and in 1995 he was awarded a certificate in food services operation. His employment certificates indicate that in March 1996 he had been employed as a chef for over a year at a hotel in Calcutta, and from July 1996 to December 1999 he was employed as a chef in Goa, which is approximately 2,000 kilometres from Calcutta. He left his employment in Goa in December 1999 to pursue a "better opportunity". He is married with a son, and both his wife and child remain in India. 5 In 1989, while he was still at school, the appellant became involved in the Congress Party, and in 1991 he became an active member. His role in the party involved talking to people in his village about the party, and also campaigning for elections. From 1993 to 1998 he was a local leader and elected representative to the Panchayet Samiti (district council). During this time he was involved in work for the village, such as the building of roads. In May 1998 he ran as a Congress Party candidate for Zila Parisad (a council of districts). He was defeated at these elections. The appellant submitted to the Tribunal some documents said to be election papers, which supported his claims regarding his candidacy in both the Panchayet Samiti and Zila Parisad. In the parliamentary elections which took place in November 1999, the appellant assisted in the campaign of another Congress Party member, Mr Khanra. Mr Khanra was defeated in these elections. 6 The appellant's problems began following his defeat. He had been oppressed and tortured by his political opponents (who he identified as members of opposing parties, namely the BJP, CPIM and TMC) on a number of occasions. He had death threats made against him, and his shop was ransacked. In August 1999 his opponents in the village, who had previously told him to leave politics, attacked him, breaking his leg and wrist. Throughout this period, they also spoke badly of him, insulted him, and put up posters about him. A shop he operated, along with a number of other shops in the area, was burned down by his political opponents in November 1999. He stated that at this time, he decided to leave India. At the hearing the appellant made a number of additional claims, including that his opponents accused him of crimes and there were pending cases against him as a result of these false accusations. 7 The appellant entered Australia on a passport issued in June 1994 for a period of 10 years. The passport had previously been used to travel to Singapore and Bangladesh, and contained a single entry visa for Norway issued in September 1999, which had a qualification that no resident permit would be granted following the visa's expiry. 8 A number of documents were provided to the Tribunal by the appellant to support his claims. These included a letter from Mr Khanra attesting to the appellant's involvement with the Congress party, the appellant's repeated assaults by his political opponents, the appellant's failed attempt at election to the Zila Parisad, and the appellant's assistance to Mr Khanra in the 1999 elections. A letter from a Congress Party representative in the Legislative Assembly was also provided. This letter stated that the appellant was a loyal and hardworking Congress Party member who had been forced out of India by members of other political parties. Also included was a medical certificate dated March 2001, which stated that the appellant was treated in hospital as an outpatient for injuries in August 1999, and a complaint to police dated November 1999, which states that his political opponents had attacked him and ransacked his shop. 9 The Tribunal questioned the appellant as to why his opponents would cause problems for him after he had been defeated, and not while he was in power. The appellant replied that this was because he was still undertaking good work for his community, and he was also assisting Mr Khanra in the parliamentary elections. The Tribunal also questioned the appellant concerning steps he had taken following the attacks and harassment at the hands of his opponents. The appellant stated that he had gone to the police on a number of occasions but they had been unhelpful as they always support the party in power and will not help political opponents of that party. 10 The Tribunal then addressed the issue of the appellant's employment in Goa. The appellant confirmed that he had worked in Goa prior to his departure from India, in addition to his work there in the period between 1996 to 1999. He said that while working in Goa, he would return to the village during his leave periods (15 days per month), and visited the village several times per year in connection with his involvement in politics and to visit his wife and child, who remained in the village. The appellant added that the tourist season in Goa only lasts for 6 months, and that he lived for 6 months in Goa and 6 months in his village. The Tribunal raised the possibility that the appellant could have remained in Goa to get away from the problems he was having in the village. The appellant replied that his opponents had been after him in Goa as well. 11 The Tribunal accepted that the appellant had been involved with the Congress Party in the manner claimed, his representation in the Panchayet Samiti and his attempts at election to the Zita Parisad as a party candidate. However it did not accept the appellant's claims that he left India to avoid persecution by his political opponents. It also did not accept that the appellant had spent much time in the village, noting that he had been working in a town which is approximately 2,000 kilometres away. While the Tribunal did accept that the appellant was injured in 1999, it did not accept that this was the result of an attack by political opponents. Similarly, the Tribunal accepted that the appellant's shop may have been burned, however it did not accept that this was a result of specific targeting of the appellant by political opponents. 12 The Tribunal noted that the appellant appeared to have been making arrangements to leave India prior to the alleged incidents occurring, based on his Norwegian visa. It was also not accepted that the appellant was of adverse interest to the authorities (based on false allegations or otherwise), and in any event, the Tribunal stated that even if the appellant did have local problems, he could relocate within India. 13 The Tribunal concluded the appellant was not an individual to whom Australia owed protection obligations.