NADD v Minister for Immigration and Multicultural and Indigenous Affairs

The applicant also claimed asylum on the basis of a well-founded fear of persecution for reasons of religion, namely his Muslim religion in India. He claimed that Muslims were indirectly harassed and received harsher penalties from the courts even for minor offences. However, his claims were general in nature and did not refer to any specific instances of persecution to himself. 10 The Tribunal's findings were brief. It accepted some of the appellant's evidence as set out in [7] of the learned Magistrate's reasons which were in the following terms:

The Tribunal dealt with the claim in a short expression of findings and reasons between [CB 75 and 76]. The Tribunal accepted the applicant's claim that he was a supporter of the LTTE and sent medicines and material for uniforms to Columbo. The Tribunal accepted that the LTTE has been illegal since the assassination of Rajiv Ghandi. The Tribunal accepted that the applicant was arrested in mid 2000 and detained for a few days and that he was mistreated. The Tribunal accepted that between that time and his departure in August 2001, he was able to avoid arrest through living only 60 kilometres from his home. The Tribunal noted that the applicant was able to leave India on a passport in his own name issued in August 2000 through Chennai Airport. 11 However, the Tribunal concluded, significantly based on country information, that the appellant would not have been able to leave India on his own passport if he had been a genuine fugitive from the Tamil Nadu Police or if he was at any risk of being arrested. The learned Federal Magistrate dealt with this issue at [12] and [13] of his reasons as follows: [12] The Tribunal had before it certain country information concerning the ability to leave India by air and the nature of warrants for arrest. It relied on that evidence and the fact that the applicant had managed to bribe his way out of the first arrest situation and had not been rearrested in over a year. The Tribunal came to the conclusion that the applicant was not a genuine fugitive from the Tamil Nadu police and therefore presumably not the sort of person who could be described as a terrorist and therefore likely to the be subject of a national arrest warrant. [13] The conclusion reached by the Tribunal was capable of being reached upon the evidence before it and does not indicate in any way that the Tribunal came to the matter with a closed mind or a view incapable of alteration. There is nothing in the questioning of the applicant revealed in the reasons for decision that indicates a predisposition against him. 12 The approach of the learned Magistrate was directed significantly to the issues before him: bias and lack of good faith. However, he also said that the conclusion reached by the Tribunal was one capable of being reached on the evidence. I agree. 13 The Tribunal also dealt with the matter on the basis of its being wrong in its conclusion about the Tamil Nadu Police. The learned Magistrate dealt with this at [14]. Whilst I share some reservations about this body of findings that evidently the Magistrate had, I see no error in the approach of the learned Magistrate to considering this part of the Tribunal's reasons. 14 The appellant in his detailed five-page written submissions states that the Tribunal must have been biased to conclude as it did, having accepted the various elements of the appellant's evidence reflected in the Tribunal's reasons. 15 The findings of the Tribunal are brief but the essential fulcrum of the reasons is its conclusion that the appellant would not have been able to leave India in the way he did if he was in any danger of arrest by the Indian authorities. 16 The submissions of the appellant seek to persuade the court also of the merits of the claim for asylum. To the extent that they do this they are urging upon the court a course which is not open to it and I refuse to engage in a body of fact finding based on country information and the appellant's own evidence. 17 The appellant also sought to say that various relevant materials were overlooked by the Tribunal and so, it was submitted, relevant material was not taken into account. This is not the place to elaborate upon the distinction between matters which, pursuant to Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24, can be said to be compulsory for the Tribunal's consideration and general questions of evidentiary material said to be important. It is sufficient to dispose of the matter to say that there is no basis to conclude here that the Tribunal did not attend to all relevant country information and all relevant material put to it and before it for the disposition of the appellant's case. 18 One particular piece of country information said to be ignored was at page 94 of the Court materials which was a page of country information being part of the India Assessment October 2001 which, one-third of the way down the page, has the heading "Treatment of Returned Asylum Seekers". The premise for the relevance of this material, however, is a factual circumstance contrary to the Tribunal's findings - that the appellant is wanted by the Indian authorities. The Tribunal concluded that he was not. Thus, on its face, this country information was not inconsistent with the way the Tribunal approached the matter. As I have said, there is no basis for me to conclude that the Tribunal did not take into account and weigh this very piece of country information. 19 It was submitted that the Magistrate and the Tribunal both failed to deal with the appellant's claim for persecution as, in effect, a sympathiser of the Tamil Tigers. The claims of the appellant were in his statement and as reflected by the answers which he gave to the Tribunal as set out in the Tribunal's reasons. The approach of the Tribunal was to reject the assertions of the appellant that he was at risk of persecution upon his return to India. This is a conclusion wide enough to comprehend the appellant's position as a so-called sympathiser, as distinct from some participant in Tamil Tiger activities. Having read the material in the court book I can see no basis to conclude that the Tribunal failed to deal with any way of putting the appellant's claims which were on the papers or orally before the Tribunal. Thus, I do not think that it can be said that there was a failure to address the appellant's claims as reflected in the material before the Tribunal and so, in this way, there is no apparent failure to deal with what would be compulsorily relevant material. 20 Having examined the Tribunal's reasons and the material before it as well as the reasons of the learned Magistrate at first instance I see no error, jurisdictional or otherwise, which might be sufficient for the invocation of subs 39B(1) or par 39B(1A)(c) of the Judiciary Act 1903 (Cth). In these circumstances it is unnecessary for me to consider what might in other circumstances be the inter-relationship between those sections and s 474 of the Act. 21 Being unable to identify any error from the learned Magistrate the appeal shall be dismissed and I order that the appellant pay the respondent's costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate: Dated: 17 September 2003

Counsel for the Appellant: No appearance by or on behalf of the appellant

Counsel for the Respondent: Mr T Reilly

Solicitor for the Respondent: Blake Dawson Waldron

Date of Hearing: 15 September 2003

Date of Judgment: 15 September 2003