Federal Court Dismisses Visa Applicant’s Judicial Review Application

OUTCOME: Dismissed

FEDERAL COURT OF AUSTRALIA

[APPELLANT] v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 91 [APPELLANT] v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 1552 OF 2003 [NAME] 9 FEBRUARY 2004 [APPELLANT]

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1552 OF 2003

BETWEEN: [APPELLANT]

APPLICANT

AND: [APPELLANT] FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

[APPELLANT] OF ORDER: 9 FEBRUARY 2004

[APPELLANT]

THE COURT ORDERS THAT: 1. The application 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 N 1552 OF 2003

[APPELLANT]

APPLICANT

RESPONDENT

JUDGE: [NAME]: 9 FEBRUARY 2004

PLACE: [APPELLANT] FOR

JUDGMENT 1 The applicant is a citizen of India and is of the Muslim faith. He arrived in Australia on 8 March 2000 travelling on a student visa. According to the Refugee Review Tribunal ('the [NAME]') the applicant left India lawfully without difficulty or incident. The applicant travelled on an Indian passport and left India through Chenai Airport. The applicant says that in fact he left through Hyderabad Airport. I have no way of knowing which of these two assertions is the correct one, and in any event it is immaterial. 2 On 16 April 2002 the applicant applied for a protection visa after his student visa had expired on 13 April 2000. On 6 August 2002 that application was refused by the Minister's delegate. The applicant applied to the [NAME] for a review of that decision. The [NAME] held a hearing on 14 August 2003 at which the applicant appeared. A transcript of that hearing is not before me. On 1 September 2003 the [NAME] affirmed the decision not to grant the applicant a protection visa. 3 The applicant claimed to have a well-founded fear of persecution by reason of his religion and political activities. That claim was founded in its entirety upon the applicant's own statements and evidence. The [NAME] found that the applicant was not a credible witness, describing the applicant's claims as 'vague and generalised'. The [NAME] also did not believe the applicant's explanation that he was unable to remember more details because of his 'bad medical condition' for which he had never sought medical treatment. Nor did the [NAME] accept the applicant's contention that he was a member of the [COMPANY], an organisation founded to collect information about atrocities committed against Muslims, as the applicant provided no documentary evidence or other information in support of that claim and there was no mention of any such organisation in any of the databases or other information available to the [NAME]. Further, the applicant's travel movements and his delay in making his protection visa application appeared to the [NAME] to be inconsistent with his claims to have been arrested and to fear persecution in India. These are factual findings which it was open to the Tribunal to make. 4 In his application to this Court the applicant asserts that the decision made by the [NAME] is not satisfactory. However, this assertion is not a recognisable ground of review. The application continues: 'The Tribunal member have not taken in consideration about the things which is in favour of my application. He have given me 10 to 15 minutes of my two and a half hours interview to speak about the real fear which pushes me to flee from my country and all my near and dear ones. He was more worried on my personal details like when did I first join the school, how long it takes you to finish class 10th, and all different personal things which is less concern with my case. In paragraph 55 he said that I did not given any details at all, which is not true. I had given all details which is ask to me.' 5 I do not have a copy of the transcript of the proceedings before the [NAME]. I am therefore not in a position to assess whether the applicant's description of what occurred is correct or incorrect. However, the [NAME] Member does give details of questions which he asked at the hearing which tend to suggest that the [NAME] Member went about his task in a conscientious fashion. 6 The matters that have been relied upon by the applicant in his application, even if true, therefore do not establish any legal error, let alone jurisdictional error, on the part of the [NAME]. 7 The applicant appeared for himself without the benefit of any legal assistance when this matter came on for hearing. He had the assistance of an interpreter, although his command of English was such that he was able to address the court without needing the interpreter's assistance. 8 The applicant told me that in his view the [NAME] had not given any serious consideration to his claims to fear persecution, and that the [NAME] Member was more interested in his personal details and would not take any notice of his oral evidence. He characterised the proceedings before the [NAME] as being unfair. He said that he thought the [NAME] Member was making fun of his claims. He also said that the Member had held him responsible for mistakes which had been made in his application form by the immigration agent whom he had engaged to assist him. 9 I am not able to accept the applicant's characterisation of the proceedings before the [NAME], both because I do not have the transcript of the proceedings before the [NAME] and because they appear to me to be inconsistent with the picture which emerges from the Member's decision. The Member necessarily had to make an assessment as to the applicant's credibility, and questioning the applicant as to his personal details would be one way by which such an assessment could be furthered. 10 As the applicant has not established any jurisdictional error on the part of the [NAME] it follows that his application has to be dismissed. 11 Counsel for the Minister seeks an order for costs. The applicant says that he does not have any money with which to pay costs. I am prepared to assume without evidence that what the applicant says in this respect is correct and I am prepared to assume that he is impecunious. However, the ordinary practice of this Court is to make an order for costs against an unsuccessful applicant in circumstances such as these, notwithstanding the practical inability on the part of the applicant to meet such an order. The application is dismissed with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the [NAME].

Associate: Dated: 13 February 2004 Counsel for the Applicant: [redacted]

Counsel for the Respondent: [redacted]

[NAME]: [RESPONDENT] of Hearing: 9 February 2004

Date of Judgment: 9 February 2004