Applicant A150 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 406

FEDERAL COURT OF AUSTRALIA

Applicant A150 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 406 APPLICANT A150 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, MEMBER, REFUGEE REVIEW TRIBUNAL & THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL S 719 of 2003 MANSFIELD J 26 MARCH 2004 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 719 OF 2003

BETWEEN: APPLICANT A150 OF 2003

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

MEMBER, REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

THIRD RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 26 MARCH 2004

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay to the first respondent the costs of the application. 3. No order for costs of the second and third respondents. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 719 OF 2003

BETWEEN: APPLICANT A150 OF 2003

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

MEMBER, REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

THIRD RESPONDENT

JUDGE: MANSFIELD J

DATE: 26 MARCH 2004

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This application was instituted in the High Court on 18 March 2003. It sought prerogative orders in effect to set aside a decision of the Refugee Review Tribunal (the Tribunal) of 24 June 2002. The Tribunal affirmed a decision of a delegate of the respondent that the applicant was not entitled to a protection visa under the Migration Act 1958 (Cth) (the Act). He had applied for a protection visa under the Act from 3 November 2000. That was some years after he had arrived in Australia. The application was remitted to this Court for further hearing and determination by the High Court by order of 11 June 2003. 2 To succeed in the application, the applicant must demonstrate jurisdictional error on the part of the Tribunal - see Plaintiff S157/2000 v Commonwealth of Australia (2003) 211 CLR 476. It is not enough for the applicant to contend that the Tribunal simply got the facts wrong or that there is other evidence which might have been given to the Tribunal to support his claim. To be eligible for the grant of the visa, the Tribunal had to be satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (the Convention). 3 In practical terms, the Tribunal needed to be satisfied that the applicant is a refugee as defined in Art 1A(2) of the Convention. That is, he must have a well-founded fear of persecution for a Convention reason if he were to return to India. The Tribunal recorded in some detail the basis upon which the applicant claimed to have such a well-founded fear of persecution. It drew that information from the documents it had before it. 4 The Tribunal had invited the applicant to attend a hearing to make submissions and to give evidence pursuant to s 425 of the Act. The applicant informed the Tribunal that he intended to attend the hearing fixed for 17 June 2002. However, the applicant did not attend the hearing on that occasion and he made no contact with the Tribunal about that time to explain why he did not do so. Consequently, pursuant to s 426A of the Act, the Tribunal proceeded to make its decision. 5 The Tribunal identified the applicant's claims as follows: 6 The applicant's father was a member of the All India Sikh Students Federation active from about the middle of the 1980s. His father had been arrested and mistreated a number of times by Punjabi police. His father then left India to America in 1990. The applicant, following his father's departure, was detained, beaten and interrogated by Punjabi police on three occasions. He therefore left India and went to Malaysia for a time in 1991. 7 The applicant claimed that he returned to India to stay with friends in Uttar Pradesh but was again arrested and tortured by the police in 1992. He claimed that he then went to Germany in 1992 but returned to India in 1993 because he thought it was again safe. He then claimed that between 1993 and 1996 he was arrested five times by Punjabi police and assaulted and threatened with death. For his own safety he decided to leave the area and he went to Bombay to hide. He claimed further that police then sought him out in Bombay and so he decided to leave India. He then left India and arrived in Australia in about 1997.