NBAP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 318

FEDERAL COURT OF AUSTRALIA

NBAP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 318

NBAP v MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS N 98 of 2004 LINDGREN J 19 MARCH 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 98 OF 2004

BETWEEN: NBAP

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE OF ORDER: 19 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 98 OF 2004

BETWEEN: NBAP

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE: 19 MARCH 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION 1 The applicant applies for relief in respect of a decision of the Refugee Review Tribunal ('the RRT'). The application is made under s 39B of the Judiciary Act 1903 (Cth). The decision of the RRT was made on 18 December 2003 and handed down on 15 January 2004. By it, the RRT affirmed a decision of a delegate of the respondent (respectively 'the Delegate' and 'the Minister') not to grant the applicant a protection visa.

BACKGROUND FACTS 2 Although I have referred to 'the applicant' and will continue to do so, there were two applicants before the RRT, namely the applicant and his wife. The RRT noted that only the husband had made specific claims under the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees, and that the wife relied on her membership in his family. For convenience, the RRT referred to the husband as 'the applicant'. He alone has brought this present proceeding. I will use the expression 'the applicant', to refer to him, whether as applicant in this proceeding or at the earlier stages. 3 The applicant was born in India. As noted, he is married and his spouse was included in his protection visa application. The couple have no children. The applicant speaks, reads and writes Bengali and English. He has had a Bengali interpreter available to him on the hearing today, but has chosen not to use the services of the interpreter, because he feels that he is sufficiently fluent in English. However, it was made clear to him that if he had any difficulty at any time understanding me or counsel for the Minister, he should so indicate, in order that the interpreter could assist him. 4 The applicant is of Bengali ethnicity and his religion is Hindu. 5 The applicant and his wife claimed to be citizens of India. They arrived in Australia on 9 April 2003. On 22 April 2003 they lodged an application for Protection (Class XA) visas with the Department of Immigration and Multicultural and Indigenous Affairs ('the Department') under the Migration Act 1958 (Cth). On 20 June 2003 the Delegate refused to grant the visas and on 9 July 2003 the applicant and his wife applied to the RRT for review of that decision. The RRT conducted a hearing on 16 December 2003. As noted, it made its decision two days later on 18 December 2003 and handed down that decision on 15 January 2004. 6 The applicant lived at the same residential address in India from April 1993 until February 2002, according to the application for the visa. In his application the applicant described his occupation as that of 'computer engineer'. He claimed to have been employed in India from March 1994 until January 2002 in electronic and computer positions. He has completed 17 years of education, including tertiary education. 7 The applicant has an Indian passport which was issued on 19 March 1997 and is valid until 2007. He departed from India on 25 July 2002 travelling to New Zealand on a student visa which was issued on 19 July 2002. He arrived in New Zealand on 26 July 2002 and was granted a permit to remain in New Zealand until 28 February 2003. He was granted a second student visa on 28 January 2003 which was valid until 31 July 2003. 8 As noted earlier, the applicant arrived in Australia on 9 April 2003. He arrived here on a visitor's visa granted on 28 March 2003 in Auckland. The visa was valid for two weeks from the date of arrival, that is, until 23 April 2003. On the day before the expiry of that period, 22 April 2003, the applicant applied for the Protection visa. He did not apply for protection in New Zealand – a matter which was taken up with him by the RRT. 9 In his Protection visa application the applicant said that he departed from India lawfully and had no difficulty in obtaining his travel documentation. 10 The applicant claimed to fear persecution in India because of his political opinion. He claimed, in his protection visa application, to fear political harassment and intimidation from the political party 'CPM'. He said that he was 'a dedicated and most active youth leader of the opposition party 'Trinamul''. 11 The applicant was assisted in preparing his application for the Protection visa by Little n' Bons' Associates, Migration and Language Service. In stating in his application why he left India, the applicant did not state his reasons in much detail, although he made it clear that his claim was as I have described it. He stated: 'I was physically assaulted and harassed by the CPM hooligans and their associate terrorist. In fact my life became unbearable in India and I found myself very vulnerable in India. Therefore, finding no other alternative I was compelled to leave India for a sanctuary.' He added that he had gone to New Zealand as a student as he found that 'easy to achieve and afford'. He said that in New Zealand, 'due to breach of the student visa condition', his visa was under threat which could have resulted in his being sent back to India. He said it was for that reason that he left New Zealand.