NAJS v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT (revised from transcript) 1 This is an application purportedly made under s 39B of the Judiciary Act 1903 (Cth), seeking judicial review of a decision handed down by the Refugee Review Tribunal ("the Tribunal") on 16 January 2003 affirming a decision of a delegate of the respondent Minister to refuse the applicant a protection visa. 2 The applicant's claim to refugee status in India, his country of nationality, was put in two ways. Firstly, he claims that he was a witness to a violent incident in which a large number of police, including a police sub-inspector, were killed by a Muslim terrorist group, on account of inter-communal tension. He said that he gave some evidence, seemingly in a preliminary way, in the intended prosecution of the miscreants. He claimed that they threatened him, should he give evidence in any further stage of the prosecution. The applicant says he fears persecution at the hands of those involved in the crimes and/or their supporters from whom the authorities would be unable to protect him. Secondly, he says that he is a Hindu and a member of two Hindu organisations which it is sufficient to call the VHP and the RSS. He says that he fears persecution for this expression of his Hindu beliefs. 3 The application to the court is unhelpful, to say the least, in positing any jurisdictional error on behalf of the Tribunal. However, in oral submissions today, the applicant, who is unrepresented, referred to two matters which might conceivably raise jurisdictional errors. The first was that being a witness in the alleged proceedings to which I have referred was a matter based upon his religion. The second was that he had wished to have more time to provide more evidence to the Tribunal. It is necessary to give some further background before indicating how and why these matters, in my opinion, do not ultimately raise any jurisdictional error. 4 The applicant arrived in Australian on 30 August 2001 on a visitor's visa and applied for the relevant category of protection visa on 26 September 2001. The application was refused by the delegate of the respondent on 26 April 2002. On 24 May 2002, the applicant applied to the Tribunal for a review of the delegate's decision and in his application said that he wanted to provide some more evidence to the Tribunal than the delegate had had, but that he was unable to produce certain documents because of many problems in India. On 22 October 2002, the Tribunal invited the applicant to attend a hearing and to give oral evidence and present arguments in support of his application. The applicant appeared at a hearing before the Tribunal on 16 December 2002. 5 The Tribunal Member, for reasons which she gave, disbelieved that the applicant was at risk of harm for having given evidence about the killing of a police officer, saying, indeed, that she was not satisfied that he had witnessed any such killing or that he had given evidence or as a result had been threatened. 6 The Tribunal Member relied on a judgment of Tamberlin J in Maningat v Minister for Immigration & Multicultural Affairs [1998] FCA 443, in which his Honour said the following: 'Fear of reprisal or being harmed or "silenced" because a person might be able to give evidence against the perpetrators of a violent or criminal act, without more is not a fear of persecution for a Convention reason. The word "opinion" contained in the Convention is of central importance in this case. The circumstance that the act was carried out by Communists does not mean that the witness was in danger of persecution by reason of opinions held byhim. The fact that a person is in fear because he witnessed an abduction is, taken by itself, a neutral circumstance under the Convention. Such fears might equally arise as the result of being a witness to a killing by criminal groups such as the Mafia, where, for example, there may be no suggestion of persecution for holding a political opinion.' 7 However, as the Tribunal Member recorded, the applicant stated at the hearing that "anyone who had seen the killing of the police officer … would be at risk of harm". Although he later qualified this by saying that Muslims would not give such evidence against other Muslims. 8 The Tribunal Member concluded that the fact that the killing may have been carried out by Muslims, did not mean that the applicant, if he was a witness (contrary to her finding), was in danger of persecution for reason of political opinions held by him or because of his religion. 9 She said: '…On this point I consider significant the fact that he did not claim that the people who threatened him made any reference to his involvement with the Hindu nationalist RSS or the VHP, nor to his religion. [The applicant's] account leaves me in no doubt that neither his religion nor his political opinion would be the "essential or significant" motivation for the harm he claims to fear. I find that any harm he might face arising from his witnessing the killing of a police officer would not be motivated by any of the Convention reasons." 10 It might perhaps be arguable that the Tribunal Member had failed to appreciate that there might be a way in which the alternative claim, resting on a proposition that only non-Muslims would give evidence against Muslims, could amount to a Convention reason of persecution. This might be that, if that factual premise were true, the giving of evidence against the muslim criminals would be ipso facto the assertion of an anti-Muslim religious view or political opinion. In other words, what put the applicant in his current predicament, on that view, would be an actual or imputed anti-Muslim stance. 11 I think it is not open to read the Tribunal Member's reasons as a whole without coming to the view that she had no real doubt about her disbelief of the applicant, even though she used the formula that "I am not satisfied" that he witnessed the supposed killing. In that case, any error that she might have made on the legal questions the Tribunal Member implicitly asked herself about the characterisation of any persecution, if the disbelieved story should be true, is irrelevant to the outcome, and need not be further pursued.