Federal Court Rejects Refugee Appeal

FEDERAL COURT OF AUSTRALIA

[NAME] v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1753 [NAME] v Minister for Immigration and Multicultural and Indigenous Affairs AND REFUGEE REVIEW TRIBUNAL NSD 1502 OF 2005 MOORE J 28 NOVEMBER 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1502 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: [NAME]

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: MOORE J

DATE OF ORDER: 28 NOVEMBER 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's 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 NSD 1502 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: [NAME]

APPELLANT

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: MOORE J

DATE: 28 NOVEMBER 2005

PLACE: SYDNEY

REASONS FOR

JUDGMENT 1 This is an appeal from a judgement of a Federal Magistrate of 2 August 2005 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") not to grant the appellant a protection visa. On 1 March 2003 the appellant arrived in Australia. He applied for a protection visa on 27 March 2003 and on 11 November 2003 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refused to grant him the protection visa. The appellant sought review of that decision by the Tribunal on 11 December 2003. The Tribunal affirmed the decision of the delegate of the Minister, handing down its reasons for decision on 13 May 2004. 2 The appellant is a national of India. He claimed to fear persecution on the basis of his religion, that is, Shia Muslim, and imputed political opinion. The appellant claimed to have suffered harm in the past from the [NAME] because he is Shia Muslim and because of his involvement in the [COMPANY], a very small localised welfare organisation. The appellant claimed to have attracted the adverse attention of [NAME] by reason of his being the secretary of the [COMPANY]. This group was informally arranged, comprised about 10 people and held community discussions to promote communal harmony. It did not undertake political or charitable work. 3 The appellant claimed the [NAME] were his main assailants but he was also ill treated by [NAME] for being from a backward Shia family. He claimed to have been violently attacked in public by [NAME], to have reported the incident but that no action was taken. He claimed the BJP pursued him from Mumbai to Ratnagiri, his home town, and that he was abused, threatened and kicked slightly by [NAME]. Following this he returned to Mumbai where there was an attack on the [COMPANY] and it was burned. He also claims to have received many phone calls and threatening letters. 4 In its reasons for decision, the Tribunal said that it had regard to the material referred to in the delegate's decision, other material available to it from a range of sources and the appellant's oral evidence. The Tribunal was not satisfied that all the harm he claimed he had suffered had occurred. Where it accepted harm had occurred and giving the appellant the benefit of the doubt, the Tribunal concluded the harm was not serious enough to constitute persecution. Where it rejected claims of harm, it did so because of inconsistencies in the appellant's evidence and accounts of events considered implausible. It found there was effective state protection and the appellant did not have a well founded fear of persecution on the grounds raised. 5 The Federal Magistrate found the Tribunal had not failed to take into account a relevant consideration and that no actual bias affected the Tribunal's decision. Nor did his Honour find any basis for the claim that the finding that the appellant was not a refugee was not based on any rational or logical basis. The Federal Magistrate found that the matter was not one relevantly similar to the facts in [NAME] v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601. His Honour did not discern jurisdictional error on the part of the Tribunal. 6 In this appeal the grounds of appeal state: The Federal Magistrates Court delivered judgment on 8 August 2005; failed to find error of law, jurisdictional error, procedural fairness and relief under section 39B of the Judiciary Act 1903. The Tribunal made judgment was not maintained the proper procedure of the Migration Act. Reference is then made in the notice of appeal to the judgment of the High Court in Plaintiff S157/2002 v Commonwealth of Australia(2003) 211 CLR 476 and also the decision of the [ADDRESS] of the Federal Court in SAAP (SAAP of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 411). Further reference was made to [NAME] v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 931. The appellant has also filed written submissions which appear to maintain the argument about the similarities between this case and the case of [NAME] v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601. 7 Counsel for the respondent has filed comprehensive written submissions answering, in my opinion, each of the issues raised by the appellant in this appeal and to the extent that this appeal can be seen to raise any arguable points having regard to the way the Tribunal dealt with the appellant's case. 8 I have reviewed the reasons for decision of the Tribunal and the reasons for judgment of the Federal Magistrate. It does not appear to me that the Federal Magistrate erred in concluding that the Tribunal had not fallen into jurisdictional error. For those reasons this appeal should be dismissed with costs. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate: Dated: 13 December 2005

The Appellant appeared in person.

Counsel for the Respondent: [redacted]

Solicitor for the Respondent: [redacted]

Date of Judgment: 28 November 2005