NAIP v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an appeal from the judgment of Madgwick J in NAIP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 451 in which he dismissed the appellant's application for judicial review of a decision of the Refugee Review Tribunal (RRT) handed down on 16 January 2003. The decision which was sought to be reviewed itself affirmed a decision of a delegate of the respondent Minister refusing to grant the appellant a protection visa. 2 At the hearing of this appeal on 3 December 2003 this Court made the following orders:

1. The appeal be dismissed.
2. The appellant pay the respondent's costs of the appeal. 3 When this appeal was called on the appellant did not appear. He was called in the precincts of the Court but still failed to appear. 4 The appellant was notified of the time and date of the hearing of the appeal by letter dated 22 August and sent to his address at 2/16 Clyde Street, Granville NSW 2142. 5 We were told during the hearing by Ms Allars, who appeared for the respondent, that the appellant attended the directions hearing of the appeal. A copy of her written submissions was sent to the appellant at the address by express post and not returned. No written submissions were filed by the appellant. 6 The Court had not received any communication to indicate that the appellant would not be able to attend. When he did not appear court staff were unable to make contact with him by telephone. 7 The respondent was ready to proceed. After the appellant had been called and had not appeared, Ms Allars sought an order that the matter proceed: O 52 r 38A(1)(d) of the Federal Court Rules. Alternatively she sought an order dismissing the appeal. 8 The Court had before it all the documents which were before the primary Judge, the Notice of Appeal and the Respondent's written submissions. The Court proceeded to hear the matter. 9 Shortly after the hearing the Court was advised that the respondent's written submissions had been returned to the respondent's solicitors in the original envelope marked 'Returned, unknown at this address'. 10 The appellant claimed to be an Indian national. He left India on 27 August 2001 on a passport in his own name which was valid until November 2005. He entered Australia travelling on a visitor visa on 28 August 2001. The visa was valid for three months multiple travel. 11 On 4 September 2001 the appellant lodged an application for a Protection (Class XA) Visa with the Department of Immigration and Multicultural Affairs (now the Department of Immigration and Multicultural and Indigenous Affairs). 12 On 30 April 2002 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant the protection visa. On 24 May 2002 the appellant applied to the RRT for a review of that decision. 13 The appellant claimed to be a 47 year old Indian Hindu from Kerala who had married in 1988. He said that his spouse, two daughters and a son continue to reside in India. 14 He said that he had been employed in a bus service business from June 1995 until he left India in August 2001. 15 He said that he worked as a priest in a temple after finishing school and that he was Hindu by religion. He said that he was a member of the Rashtriya Soyaum Sange (RSS), a political organisation. He said that the RSS was banned by Prime Minister Indira Gandhi who labelled the RSS as terrorists. 16 He said that he was accused and placed under house arrest. He said that in 1977 the Janatha Party came into power and in 1980 that party split and the Bharateeya Janatha Party (BJP) was formed. He said that he began to work for the BJP as a result of which he was subjected to harassment by members of the Marxist and Congress Parties. 17 He said that in 1995 the government changed and opposition party members were harassed. He said that he was a particular target because of his prominence in politics. He said that his business was destroyed and he was severely injured in an attack in which he was almost killed. 18 The RRT disbelieved the appellant as had the delegate previously. 19 The RRT found that he was untruthful in relation to his claim that he had been the victim of an attack and as a result had been hospitalised. It disbelieved him in relation to his claims as to travel outside India prior to coming to Australia. It informed the appellant that his claim of political connection was very general, vague and unsupported. It was put to him that the BJP was the present government in India, both nationally and in his State of origin. In its reasons the RRT said: 'The [appellant's] evidence in relation to most aspects of his claim was vague, generalised, lacked specific detail, and was inconsistent and unconvincing. I do not consider that the [appellant] was a reliable or credible witness. This is especially so with regard to the evidence that the [appellant] gave at the hearing of 11 December 2002, where the [appellant] was unable or unwilling to provide any details or provide any substance of his claims. The lack of credibility of the [appellant's] evidence leads me to conclude that I am unable to be satisfied that the [appellant] had faced persecution in India or faces a real chance of persecution in the foreseeable future if he returns to India.' 20 The RRT dealt with a number of specific aspects of the appellant's evidence giving reasons why it rejected that evidence. 21 When the matter came before Madgwick J, the applicant appeared on his own behalf. He was unable to point to any error on the part of the RRT except in its ultimate conclusion. It is clear from the proceedings before Madgwick J that the appellant's single complaint related to the merits of his application. 22 In his reasons, his Honour said: 'The [appellant] appears unrepresented, assisted by an interpreter. His application to the Court is remarkably inadequate even by the standards of unrepresented litigants. Doing the best one can with it, he appears to be making an application for whatever form of judicial intervention that might commend itself to the court, pursuant to s 39B of the Judiciary Act 1903 (Cth). The accompanying affidavit does not suggest any error of any kind by the Tribunal. When invited by me today to say what errors the Tribunal might have made, the [appellant] indicated that his complaint was that he had told the truth to the Tribunal, which had not believed him. Because of the seriousness of his claims and the fact that he was unrepresented, I have looked through the material to see whether any basis for judicial review might be capable of argument, but I can find none. A Judge is of course not best placed to do this but nevertheless I have tried. As far as I can see there is no basis at all for the Court to intervene and no reason to think that the Tribunal made any error of law at all, let alone any jurisdictional error.' 23 In his grounds of appeal the appellant claims 'His Honour erred holding that the Refugee Review Tribunal had not exceeded its jurisdiction and constructively failed to exercise it'. 24 In his grounds of appeal, the appellant did not identify any error made on the part of Madgwick J. He did not give any particulars of the constructive failure of the RRT to exercise its jurisdiction. 25 The appellant has not established any ground for intervention by this Court. 26 For these reasons the Court dismissed the appeal and ordered the appellant to pay the respondent's costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Gray, Tamberlin and Lander.