Applicant A305 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicant is a citizen of India who arrived in Australia on 22 October 2001. On 6 May 2002, he lodged an application for a protection (class XA) visa. On 21 May 2002, a delegate of the respondent('the Delegate') refused to grant the protection visa and, in June 2002, the applicant applied for a review of that decision by the Refugee Review Tribunal ('the Tribunal'). On 10 September 2002, the applicant attended a hearing before the Tribunal and, on 18 October 2002, the Tribunal handed down a decision affirming the decision of the Delegate not to grant a protection visa. 2 The applicant as prosecutor commenced proceedings in the High Court, apparently on 19 November 2002, by way of a draft order nisi. On 7 February 2003, Hayne J ordered that the proceeding be remitted to the Federal Court pursuant to s 44 of the Judiciary Act 1903 (Cth). Accordingly, this is an application for an order nisi. The question is whether the applicant has an arguable case (NAHQ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 297). The affidavit of Mr Clisby, the solicitor for the applicant, in support of the application filed in the High Court ('the Clisby affidavit') set out the grounds of complaint in respect of the decision of the Tribunal. Those grounds are: '5.1 that a breach of the rules of natural justice occurred in connection with the making of the Decision 5.2 that the Decision involved an error of law, whether or not the error appears on the record of the Decision. 5.3 that procedures that were required by law to be observed in connection with the making of the Decision were not observed. 5.4 that the making of the Decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made. 5.5 that there was no evidence or other material to justify the making of the Decision. 5.6 that the Decision was otherwise contrary to law.' They are singularly uninformative. 3 The decision of the Tribunal set out in some detail the applicant's history as presented by the applicant. The applicant gave his history in his initial application for a protection visa, his application for review and then in his submissions to the Tribunal. The Tribunal identified two core claims made about the applicant's experiences in India. First, that he was threatened by a gang over his desire to press for prosecution of the person who was responsible for his mother's death in a motor accident. Secondly, that he has been persecuted because he is an active Christian and a member of a 'scheduled minority caste'. He fears that he will be persecuted for the same reasons if he returns to India. 4 The applicant claimed to fear persecution for reasons of his religion in India. As ultimately presented to the Tribunal, he claimed to be a proselytising Christian and to have been arrested on a number of occasions for this reason. He also claimed that after his mother was killed in a car accident he was harassed by the fundamentalist Hindu Shiv Sena Party ('Shiv Sena') of which the perpetrator of the accident was a member. He claimed to fear further harm from the police or Shiv Sena if he returned to India. 5 The Tribunal concluded that material aspects of the applicant's claim had been fabricated. The Tribunal noted, in the applicant's application for the visa, that there was no mention whatsoever of persecution because of his religion, as opposed to difficulties with the gang, a member of which was said to be responsible for his mother's death. The Tribunal rejected the applicant's explanation for this and, while it accepted that the applicant was a Christian, found that his claims that were concerned with his being a proselytiser were contrived. The Tribunal noted that this conclusion was consistent with his failure to leave India earlier and his ability to leave on his own passport without difficulty. 6 Similarly, while the Tribunal accepted that the applicant's mother had been killed in an accident, it did not accept that the Shiv Sena were involved or wished to harm the applicant. The Tribunal regarded this claim as illogical and implausible and again inconsistent with the applicant's delay in leaving India. The Tribunal concluded that both the claim to have been persecuted as a Christian in the past and by the Shiv Sena because of his mother's accident were untrue. Further, the Tribunal found that any fear the applicant may have as a Christian was not well founded, noting independent country information to the contrary. 7 At the hearing before me, the applicant reiterated his concern that the facts that he had given the Tribunal were true and gave, as the ground of his application, that the Tribunal did not give sufficient weight to the differences between the two written documents he had submitted. In fact, a reading of the Tribunal decision makes it clear that the Tribunal did deal with his explanation in its decision. 8 I took the applicant through the grounds of appeal as set out in the Clisby affidavit and asked him to specify any further matters that he could raise in relation to those grounds. The applicant was not able to point to any matter that he wished to raise in any of those grounds other than a reassertion that the Tribunal did not consider the facts that he had put before the Tribunal, in that it had not given due weight to his explanation, essentially repeating what was in his written submissions. 9 I can discern no error on the part of the Tribunal. It was plainly addressing the correct question and put to the applicant its concerns as to his credibility. It was on the basis of the applicant's credibility that the Tribunal came to the conclusion that the applicant had embellished his claims, was not persecuted by Indian authorities and was not persecuted by Shiv Sena members for reason of his religion or his efforts to prosecute the driver of the vehicle that killed his mother. 10 The Tribunal did rely on country information about the attitude towards Christians but, based on the applicant's claims, was not satisfied that the applicant's activities might attract the wrath of Hindu nationalists. However, contrary to the assertion in the applicant's written submissions, the Tribunal decision was not based on media information; it was based on the facts as presented by the applicant to the Tribunal. 11 The applicant asserts that he was denied natural justice and procedural fairness. No particulars were given in the grounds of appeal and nothing further was put to me. I can see no basis for this assertion. 12 The applicant, in written submissions, raises matters of a factual nature and the weight given by the Tribunal to matters raised by him. He also, in those submissions, gives an explanation why he concealed certain facts in his initial application. The findings of fact by the Tribunal were open to it on the material before it. None of the factual matters raised by the applicant can found jurisdictional error on the part of the Tribunal. 13 The applicant's complaints can at most concern the weight given to evidence before the Tribunal which cannot be jurisdictional error (Linett v McIntyre (2002) 117 FCR 189). In my opinion the applicant has not made out an arguable case. The application for an order nisi is refused. 14 The applicant is to pay the respondent's costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.