NAIF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 114

FEDERAL COURT OF AUSTRALIA

NAIF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 114 MIGRATION – appeal from Federal Magistrate – protection visa – where Refugee Review Tribunal found arrest warrant submitted by appellant was fraudulent – where Tribunal relied on alternative grounds unrelated to appellant's credibility – no operative jurisdictional error. Migration Act 1958 (Cth) MIMA v Eshetu (1999) 197 CLR 611 followed MIMA v Jia Legeng (2001) 205 CLR 507 cited Re MIMA Ex parte S20/2002 (2003) 198 ALR 59 followed WAIJ v MIMIA (2004) 80 ALD 568 distinguished NAIF V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS No. N 1825 OF 2003 MADGWICK J 21 FEBRUARY 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY 1825 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN: NAIF

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MADGWICK J

DATE OF ORDER: 21 FEBRUARY 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed with 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 1825 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN: NAIF

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MADGWICK J

DATE: 21 FEBRUARY 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT

Madgwick J: 1 The appellant is a national of India who arrived in Australia with his wife in March 1999. They applied for protection visas on 14 April 1999. Their application was rejected by a delegate of the Minister on 28 April 1999 and they applied for review of that decision by the Refugee Review Tribunal ('the Tribunal'). The Tribunal affirmed the delegate's decision on 3 July 2001, but that decision of the Tribunal was set aside by the Federal Court on 21 November 2001. The decision presently under review followed the Tribunal's reconsideration of the matter. 2 On 17 April 2002 the Tribunal handed down a decision which affirmed the earlier decision of a delegate of the respondent not to grant a protection visa to the appellant. 3 Only the present appellant made his own claims to be a refugee. Very briefly, he claimed that, as a journalist, he had incurred the enmity of powerful political figures in Tamil Nadu by writing a series of investigative articles. He had been threatened by hooligans in 1996 and left India for a time. In December 1998, he learned that he was about to be arrested on fabricated charges implicating him with the Tamil Tigers. His political contacts could not help him and so he left India. 4 The Tribunal accepted the basic details of the applicant's age, background, profession and travels. However, it did not find him a credible witness and did not accept the other elements of his claims. It considered that aspects of his claims were implausible, and the key document provided in support of them – an arrest warrant – was fabricated. It set out its reasons for these conclusions. 5 In case it was wrong in disbelieving the appellant, the Tribunal went on to consider his claims on the assumption that they were true. On that basis, the Tribunal identified three separate reasons for not accepting that he had a well-founded fear of persecution (in the relevant sense) in India. (a) First, the passage of time since the appellant had been threatened made the chance of serious harm arising from those threats remote. (b) Secondly, the appellant's problems were localised in Tamil Nadu, he would receive adequate protection in other parts of India and (given his education and skills) it was reasonable for him to relocate within India. (c) Thirdly, the most recent clashes between the various movements in Tamil Nadu were sporadic in nature and did not give rise to a pattern of 'systematic harassment' within the meaning of s 91 R(1)(c) of the Migration Act 1958 (Cth) ('the Act'). 6 For these reasons, the Tribunal was not satisfied that the appellant was a person to whom Australia owed protection obligations under the Refugees Convention.