NAVN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 294

FEDERAL COURT OF AUSTRALIA

NAVN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 294 NAVN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 1417 OF 2003 STONE J 17 MARCH 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1417 OF 2003

BETWEEN: NAVN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: STONE J

DATE OF ORDER: 17 MARCH 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant 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 1417 OF 2003

BETWEEN: NAVN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: STONE J

DATE: 17 MARCH 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant in this proceeding is a citizen of Senegal who arrived in Australia on 4 January 2000. His application for a protection visa has been refused in turn by a delegate of the Minister and by the Refugee Review Tribunal. 2 Very briefly, the case that the applicant put to the Tribunal was that he had a well-founded fear of persecution on the basis of an imputed political opinion in that he was suspected of being a rebel. This suspicion appears to have arisen by reason of the association of the applicant with his brother whom he says was killed by the military because of his links with the rebel movement in Senegal. 3 The Tribunal accepted that the applicant was a fisherman born and raised in a riverside area in the north of Senegal. It also accepted that his elder brother had made lengthy trips to an area in the south of Senegal which, he says, is regarded as a rebel stronghold. The Tribunal did not accept the applicant's claim that his brother had been killed as a suspected rebel. Further it did not accept his account of events that included him being hired as a guide by a group of American tourists, being arrested and injured by the military in the south of Senegal, being transferred to a military hospital, escaping from that hospital and being hidden by his uncle for a period of approximately seven months. 4 The Tribunal went into considerable detail as to its reasons for rejecting the applicant's account. It found aspects of his account inherently improbable including his escape from gaol by leaping over a fence with a recently broken arm. It did not believe that the military would not have been able to find him if he had been hidden by his uncle, a prominent citizen, for seven months in the one place. It noted that he appears to have left Senegal legally, the documents on which he left the country being in his own name except for slight spelling differences in his first name. Other observations of the Tribunal included those summarised by Mr Kennett, counsel for the respondent, whose summary I gratefully adopt: (a) The Applicant had no direct knowledge of what had happened to his brother; and given his ethnicity, language and religion the brother was unlikely to have been suspected of being associated with the rebels.