NAPT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 721

FEDERAL COURT OF AUSTRALIA

NAPT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 721 NAPT v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 586 OF 2003 JACOBSON J 10 JULY 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 586 OF 2003

BETWEEN: NAPT

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: JACOBSON J

DATE OF ORDER: 10 JULY 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the respondent's 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 586 OF 2003

BETWEEN: NAPT

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: JACOBSON J

DATE: 10 JULY 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for judicial review of a decision of the Refugee Review Tribunal ("the RRT") given on 5 May 2003. The RRT affirmed a decision of a delegate of the Minister who refused to grant the applicant a protection visa. The RRT gave its decision orally at the conclusion of a hearing which took place on 5 May 2003. 2 The applicant is a citizen of India who arrived in Australia in 1996. He applied for a protection visa in September 1996, but his application was incomplete because it provided no submissions or documents. His claim was withdrawn in February 1997, but he remained in Australia. He was detained on or about 17 January 2003 and on 12 February 2003 he lodged a further application for a protection visa. 3 The applicant is a citizen of India who lived in West Bengal before he came to Australia. He claimed that he worked as a baggage handler at Calcutta airport and that he became an active member of the airport trade union run by the "Indian National Congress" of West Bengal. He also claimed that clashes occurred between members and supporters of his union and supporters of another trade union conducted by the Communist Party (Marxist) ("CPM"). 4 The applicant claimed to have a well founded fear of persecution by reason of his political opinion. He claimed that he had a fear of persecution from the authorities of the State of West Bengal which was governed by the CPM. This claim was founded principally on two matters, first, that he had been detained for three days at the end of 1995 in connection with disputes between his union and the CPM controlled union, and, second, that he was accused in 1996 of being a member of the Naxilites. The Naxilites appear to be a political movement believing in violence as the means of achieving equality and social justice. The movement started in West Bengal and is apparently active in neighbouring states. It appears that many aspects of Naxilite activity are illegal in India and that the Indian police seek to deter such activity. 5 The RRT accepted that the applicant may have been employed as a baggage handler/porter and waiter in Calcutta. The RRT also accepted that the applicant may have been involved in trade union matters in the 10 years before his departure from India. 6 However, the RRT did not regard the applicant's claimed detention in 1995 as a pointer to past or future persecution because the applicant did not mention it in his application to the department in February 2003, which he declared to be complete. The RRT noted that the applicant was assisted by a registered migration agent at that time. 7 Nor did the RRT accept that the applicant was wanted by authorities in West Bengal or that he was suspected of involvement in Naxilite activities. 8 In making this finding the RRT said: "The whole catalogue of his actions and inactions from early 1996 to the present … is a pattern of behaviour inconsistent with that of a person in fear for his life and in a desperate hurry to secure protection. There were significant delays by him at every stage of those seven years. It is particularly revealing that he did not lodge a complete DIMIA application until one month after he was detained, six years after he had withdrawn his first (incomplete) application." 9 Moreover, the RRT did not believe the applicant's claim made at the hearing before the RRT that he had been in hiding in various parts of West Bengal from May to August 1996. The RRT said that if this claim was true it would have been obvious to the applicant and his adviser that it should have been mentioned in his application to the department in February 2003. 10 The RRT commented about the applicant's delay in submitting information in support of his claim. It noted that the applicant has been in Australia since August 1996, that he first applied for a protection visa in September 1996 and that almost seven years later he had still submitted no documents which supported the key claims in his case. 11 The RRT said: "The fact that he is still claiming that he would like to submit documents which he has had almost seven years to obtain shows the utter lack of seriousness of the applicant in his approach to his case – I conclude that his lack of urgency in this matter and in the catalogue of matters over the last seven years indicates a lack of genuine fear on his part." 12 This was a finding of fact by the RRT that the applicant did not have a well founded fear of persecution. 13 This finding was repeated at the end of the RRT's reasons when it said that the inadequacies and inconsistencies of the applicant's claims and of his behaviour in pursuit of his claims, led to the conclusion that the applicant did not and does not have a genuine fear of persecution. 14 The RRT also dismissed the claim on an alternative ground, namely that if for any reason the applicant did not wish to return to West Bengal, he could be reasonably expected to relocate to another part of the country. The RRT noted that the CPM which is the party of the applicant's claimed rivals is a major force in only three states, whereas the applicant's claimed party is in government in 14 states. The RRT observed that the applicant has managed to support himself in Australia for almost seven years and said that it had no doubt of his ability to tap the same resources he has used here to support himself in India. The RRT also pointed to the applicant's savings and the fact that he is well travelled, that he is a Hindu which is the religion of approximately 80 per cent of Indians, and that he speaks Hindi which is the most widely spoken language in the country. 15 The applicant appeared in person before me. He was assisted by an interpreter. He said that if he returns to India his life will be in danger. He sought to challenge a number of the factual findings made by the RRT. He said that if he does endeavour to relocate, his opponents will find him and his life will be in danger. 16 In order to overcome the effect of the provisions of s 474 of the Migration Act, it would be necessary for the applicant to point to "jurisdictional error": see Plaintiff S157/2002 v Commonwealth of Australia (2003) 77 ALJR 454. 17 The RRT's decision does not disclose any jurisdictional error. It is plain that the decision rests solely upon findings as to the applicant's credibility. Those findings were questions of fact for the decision maker which were open to it to make on the material before it. 18 The finding that it was open to the applicant to relocate to other parts of India was consistent with the approach taken by Black CJ in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 442. 19 For these reasons the application must be dismissed. Accordingly the orders which I make are that the application is dismissed with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.