NAZV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1343

FEDERAL COURT OF AUSTRALIA

NAZV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1343

MIGRATION – no point of principle

Migration Act 1958 (Cth) NAZV v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS NSD 42 OF 2004 MOORE J SYDNEY 19 OCTOBER 2004

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 42 OF 2004

BETWEEN: NAZV

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MOORE J

DATE OF ORDER: 19 OCTOBER 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 NSD 42 OF 2004

BETWEEN: NAZV

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MOORE J

DATE: 19 OCTOBER 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT

Introduction 1 On 29 May 2003 the applicant and his wife arrived in Australia. They claimed to be citizens of India. The applicant applied for a protection visa on 24 June 2003. A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refused to grant the visa on 30 June 2003. On 23 July 2003 the applicant sought a review of that decision by the Refugee Review Tribunal ("the Tribunal"). The Tribunal affirmed the decision refusing to grant the visa on 20 November 2003. The applicant now seeks judicial review of the Tribunal's decision.

Background 2 The applicant is an Indian of the Hindu religion. He travelled to Australia legally on an Indian passport in his own name with a valid visa. He has a 13 year old son who is still in India. 3 The applicant's claims can be summarised as follows. He claimed to have suffered persecution in the past "from police corruption in Gandhi Nagar" and feared future persecution for the same reason. He claimed that effective protection was not available to him because it was the police who were persecuting him. 4 Before leaving India the applicant ran a grocery shop. One of his regular customers was a police constable who bought goods on credit. He obtained Rs 6000 (approximately A$180) worth of groceries on credit. When the applicant demanded payment of the bill the officer swore at him and said "I am in the police department, if you [keep] asking for money I'll put you behind bars and you will have to stop your business. Your kid and family will suffer a lot." The remainder of the applicant's claims are set out conveniently by the Tribunal: The Applicant continued to ask for his money and the police officer bashed the applicant saying, "I will send you to prison on a false liquor or drug case." This incident occurred in the first week of December 2002. After this particular incident the Applicant became very frightened. He did not know to whom he could turn for help. Being neither well educated, rich and not knowing any influential people the Applicant began to suffer from stress. However, he had to continue to run his shop to feed his family. On 2 February 2003 the police constable came to the Applicant's shop with several strong men. The police officer asked for groceries for himself and also for the men. When asked to pay for the groceries "up front" the police officer and the men used bad language and threatened to kill the Applicant. A heated argument followed. The men left. On 15 February 2003 the Applicant was returning to his shop on a bicycle. The police officer was in a private jeep. The police officer deliberately struck the Applicant's bicycle with the jeep. The Applicant fell off the bicycle. The Applicant was not badly injured and ran home leaving his bicycle on the roadway. The very same night the Applicant received some telephone calls from an unknown person. The caller threatened to kill the Applicant and kidnap his wife. Although he felt nervous and insecure the Applicant had to keep his shop open. The calls increased to threatening calls once or twice a day. The applicant was warned not to leave the area or discuss the situation with anyone else. The caller said that he would follow the Applicant wherever he went in India. The applicant claimed he believed there was nowhere in India safe for him and that he and his wife must leave India to find a safe place to live.