NAEI v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 154

FEDERAL COURT OF AUSTRALIA

NAEI v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 154 NAEI v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 1224 of 2002 BRANSON J 25 FEBRUARY 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1224 of 2002

BETWEEN: NAEI

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE OF ORDER: 25 FEBRUARY 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1224 of 2002

BETWEEN: NAEI

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE: 25 FEBRUARY 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant arrived in Australia on 29 August 2001. He lodged an application for a protection visa on 19 September 2001. His application was refused by a delegate of the respondent on 21 November 2001 and he applied for a review of the delegate's decision on 13 December 2001. The Refugee Review Tribunal ('the Tribunal') handed down its decision confirming the delegate's decision not to grant a protection visa on 29 October 2002. The applicant has applied to the Court for a review of the Tribunal's decision. 2 By his application for a protection visa the applicant claimed to be a citizen of India who has always lived in the Kerala province. He claims to hold Marxist political beliefs and to have been politically active since he was a student. He stated that when he was at school he was a member of the Students Federation of India and upon completing his diploma in 1994 he joined the Democratic Youth Federation of India. 3 In 1996, a Marxist political party was elected to the government of Kerala but in May 2001 the party lost the election to the Congress led United Democratic Front. The applicant claims that as a result of his prominent character in politics he was targeted by Congress members. He claims that he was arrested by the police 'for no reason', beaten up very inhumanly and as a consequence hospitalised soon after the May 2001 elections. 4 The applicant gave oral evidence before the Tribunal on 17 September 2002. The Tribunal found that the evidence of the applicant was 'general in nature and lacking in substance and credibility'. The Tribunal found it difficult to accept that the applicant was an active member of the Students Federation of India. Where the independent country information available to the Tribunal conflicted with the evidence of the applicant, the Tribunal preferred the country information. The Tribunal considered that the independent country information indicated that Kerala was generally a law abiding state. The Tribunal formed the view that it is 'more probable than not, that the alleged incident of arrest and torture did not occur'. The Tribunal concluded that if the applicant was arrested as he claimed it was because he was involved in criminal activity and not by reason of his political activity. The Tribunal concluded that the applicant's fear of persecution was not based on fact and the Tribunal was not satisfied that the applicant had a well‑founded fear of persecution if he returns to India now or in the foreseeable future. The Tribunal affirmed the decision not to grant the applicant a protection visa. 5 The applicant made an oral application to the Court today for the hearing to be adjourned. The application was unsupported by any affidavit evidence. The applicant told the Court that his only grounds for seeking the adjournment was that he was waiting for documents to arrive from India which would support his claim to have been arrested and hospitalised. I refused the application on two grounds. First, I was not satisfied that the documents for which the applicant said that he was waiting could have any relevance to the application before the Court today. Secondly, I was not satisfied with the applicant's explanation as to why he does not have the documents. As I have already mentioned, the applicant applied for a protection visa in September 2001. He gave oral evidence before the Tribunal approximately 12 months later. This application was lodged in the Court in November 2002. It seems to me that probably since September 2001, and at the latest since November 2002, the applicant has been alert to the need to have any documents that he requires to support his claim to be entitled to a protection visa. I am not satisfied that, if documents of the kind described by the applicant are available in India, they would not have been sent to him before now had he requested them at an appropriate time. 6 Neither the application nor the affidavit filed in support of the application identify the grounds upon which this Court is asked to review the decision of the Tribunal. The respondent has not, however, applied to have the application struck out on this ground. 7 The applicant has told the Court that his dissatisfaction with the decision of the Tribunal arises from its finding that he was not arrested and subsequently hospitalised by reason of having been beaten up by the police. He did not address the alternate finding of the Tribunal that if he was arrested it was because he was involved in criminal activity. The applicant also expressed dissatisfaction with the ultimate conclusion of the Tribunal that he is not entitled to a protection visa. In reality it seems that the applicant is seeking a review on the merits of the decision of the Tribunal. This Court does not have jurisdiction to conduct such a review. 8 Having read carefully the decision of the Tribunal, I see no reason to conclude that the Tribunal did not properly understand the task which it was required to undertake. Nor do I see any reason to conclude that the Tribunal did not undertake that task in a proper way and with a correct understanding of the relevant law. It was for the Tribunal, not this Court, to decide whether or not the story told by the applicant was to be believed. The Tribunal, it appears, did not believe the applicant's story. In that circumstance there was no basis upon which the Tribunal could have been satisfied that the applicant was entitled to the grant of a protection visa. 9 The application will be dismissed. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.