Federal COURT OF AUSTRALIA

NBJS v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1142

NBJS AND NBJT v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 807 of 2005

BRANSON J

2 AUGUST 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellants pay the costs of the first respondent fixed in the sum of $3 000.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     By an amended notice of appeal the appellants have appealed from a judgment of the Federal Magistrates Court delivered by Federal Magistrate Scarlett on 4 May 2005.  In an ex tempore judgment his Honour dismissed the appellants’ application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’).  The Tribunal had determined that the appellants, who are Muslim citizens of India, are not entitled to be granted protection visas (see s 36 of the Migration Act 1958 (Cth) (‘the Act’)).

2                     The substantive claim to be entitled to a protection visa has been made by the male appellant.  The female appellant has sought a protection visa as his wife.  For the appellants to be entitled to protection visas it was necessary for the Tribunal to be satisfied that Australia owed protection obligations in respect of the male appellant because he is a person who:

‘owing to well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear is unwilling to avail himself of the protection of that country.’

(Article 1A(2) of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (‘the Convention’)).

3                     The appellants have not had the benefit of legal representation either before the Federal Magistrates Court or before this Court.  Their amended application to the Federal Magistrates Court for judicial review listed five grounds of review.  In substance these grounds constituted a challenge to the appropriateness of the decision of the Tribunal.  They included assertions that the Tribunal’s decision was based on irrational and illogical reasoning.  Additionally, a failure to observe the requirements of the Act was asserted but not particularised.  It was also asserted that the Tribunal failed to consider the appellants’ claims.

4                     The learned Federal Magistrate carefully reviewed the decision of the Tribunal.  That decision was primarily based on a finding that the appellants had relocated from Kerala to Bangalore within India to escape problems experienced by the male appellant in Kerala.  Immediately before leaving India for Australia on tourist visas the appellants had lived in Bangalore.

5                     The critical findings of the Tribunal were as follows:

‘The Tribunal accepts that the applicant has suffered harassment as he claims in Kerala.  However, the Tribunal finds that the applicant has relocated to Bangalore where he has suffered no such harm.  The Tribunal accepts that life in Bangalore may be more difficult than in Kerala, but finds that the applicants have lived there safely for some three years prior to coming to Australia.  The Tribunal accepts that life there may be “harder” than in Kerala but in the light of his evidence, finds that any hardship they have suffered in relocating to Bangalore from Kerala is not sufficiently serious as to make it unreasonable in the particular situation of the applicants. 

The Tribunal accepts that Muslims in India may feel, on occasion, intimidated as a religious minority.  However, the Tribunal accepts the independent evidence that Bangalore, has a population that is 11.6% Muslim and a state government that is controlled by the Congress Party and as such is ruled by a party that has shown itself to be ready to oppose, and if necessary quell, any religious conflict.

… [T]he Tribunal finds that if the applicants prefer not to live in Bangalore, they could relocate to an area of India where inter‑religious conflict is rare …

The Tribunal accepts that Muslims, as a religious minority, may at times suffer verbal insults and minor physical harassment.  However, as indicated in the independent evidence … which the Tribunal accepts, the Tribunal finds that any such distasteful experiences the applicants may experience would be random and rare.  Further, the Tribunal does not find that any such harm is sufficiently serious as to constitute persecution.  Further, the Tribunal finds that were inter‑religious rioting to eventuate, the independent evidence indicates that state and national authorities would act to protect the applicants.’

6                     The Federal Magistrate concluded that there was ample evidence before the Tribunal to support its determination.  His Honour further concluded that the process of reasoning adopted by the Tribunal was neither irrational nor illogical.  The Federal Magistrate also rejected the other complaints made by the appellants of the decision of the Tribunal. 

7                     The male appellant has appeared today to represent himself and his wife.  The appellants’ amended notice of appeal is not easy to understand.  Some paragraphs of it appear to have been copied from documents filed in other proceedings.  As an example I refer to the ground of appeal that commences:

‘The grounds and relief is very much similar with a recent High Court judgment – Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal …’

A ground of appeal in identical terms is commonly seen in appeals of this kind.  In this case the asserted similarity does not exist.  In any event no evidence has been placed before the Court touching on the documents provided to the Tribunal by the secretary of the first respondent’s department. 

8                     I asked the male appellant to explain this and other purported grounds of appeal that are difficult to understand.  In response he simply told me that the Tribunal did not accept the case that he sought to make by his oral evidence before the Tribunal.  So far as they are comprehensible, the other purported grounds of appeal also appear to constitute reassertions of the validity of the appellants’ claim to be entitled to protection visas. 

9                     The appellants’ written submissions are also difficult to relate to the circumstances of this appeal.  Reference is made in them to the recent decision of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162; [2005] HCA 24 and to SZFKL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 931, a recent decision of Madgwick J, but the relevance of these two authorities is not explained. 

10                  I have considered carefully both the reasons for decision of the Tribunal and the reasons for judgment of the Federal Magistrate.  The precise basis of the Tribunal’s decision is not entirely clear.  It may be that the Tribunal concluded that the male appellant did not satisfy the first limb of the definition of ‘refugee’ contained in Article 1A(2) of the Convention.  That is, that he is not outside his country of nationality owing to a well‑founded fear of persecution for a Convention reason.  The Tribunal found that he had lived safely in Bangalore for approximately three years prior to coming to Australia.  Alternatively, the Tribunal may have found that the male appellant did not satisfy the second limb of the Article 1A(2) definition.  That is, that he is not a person who is unable or, owing to a well-founded fear of persecution for a Convention reason, unwilling to avail himself of the protection of his country of nationality. It seems that the Tribunal was satisfied that, if the male appellant were to avail himself of the diplomatic protection of India, he would be returned to a part of that country in which he would not face persecution for a Convention reason and could reasonably be expected to live (see NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37; SYLB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 942).  A further alternative is that the Tribunal was not satisfied that the appellant satisfied either limb of the Article 1A(2) definition. 

11                  It is not necessary to resolve the above uncertainty.  The factual findings of the Tribunal led inevitably to the conclusion that the male appellant is not a person in respect of whom Australia owes protection obligations under the Convention (see [2] above).  For this reason the appellants are not entitled to protection visas.  For the above reason no error affects the judgment of the Federal Magistrates Court. 

12                  The appeal will be dismissed. 

Associate:

Dated:              19 August 2005