NABZ v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 779

FEDERAL COURT OF AUSTRALIA

NABZ v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 779

NABZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 504 OF 2003

STONE J
28 JULY 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 504 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NABZ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	28 JULY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed with 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	N 504 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NABZ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	STONE J
DATE:	28 JULY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Magistrate given on 10 April 2003. The Chief Justice, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) has directed that the appeal be heard by a single judge. On 11 May 2001 the appellant, a citizen of India, applied for a protection visa pursuant to the Migration Act1958 (Cth). His application was refused by a delegate of the respondent on 17 September 2001. This decision was confirmed by the Refugee Review Tribunal (‘Tribunal’) on 27 August 2002 and the Tribunal handed down its reasons on 18 September 2002. On 10 April 2003 Federal Magistrate Barnes dismissed the appellant’s application for a review of the Tribunal’s decision.

2. When this appeal from the decision of Barnes FM was called this morning the appellant did not appear.  I adjourned the Court for fifteen minutes in case the appellant was merely running a little late.  The appellant was called outside the Court both before and after this short adjournment but there was still no appearance.  In these circumstances I could dismiss the appeal under O 52 r 38A or I could deal with it on its merits.  Having read the relevant materials in some detail and having formed the view that the issues are not complicated, I have elected to take the latter course. 

3. Before the Tribunal the appellant claimed to fear persecution in India on the basis of his religion.  He is a Hindu claiming to be from the State of Kerala, which apparently has a large Muslim population.  He also claimed to be at risk from a spurious charge of having been involved in the death of a local Muslim. 

4. In considering the appellant’s application the Tribunal noted that he had made inconsistent claims at various stages of the application and review process.  In the words of the Tribunal

   ‘The differences between these three sets of claims are very great.  They are not just differences of degree.  They are differences of substance.  They cannot be explained away by reference to a desire not to contradict things said in his application in India for a visitor visa or the DIMIA protection visa application having been completed without the assistance of a migration agent or possible errors made by a friend who helped to complete the application … or a failure to realise that certain things needed to be included.’

5. Not surprisingly these inconsistencies led the Tribunal to have serious problems about the credibility of the appellant’s claims.  Nevertheless the Tribunal stated that it was prepared to accept that he had some difficulties in his home State and that those difficulties persisted to the present.  The Tribunal considered however, that the risk of persecution that the appellant claimed to fear was rather localised and that he would be able to avoid this by moving to some other part of India.  In taking this position the Tribunal noted, on the basis of independent country information, that Hindus formed more than 80 per cent of the Indian population and that persecution by Muslims would be unlikely in most parts of India.  The Tribunal also took into account that the appellant is well travelled and fluent in Hindi and that this would help him adapt readily to another part of the country.  For these reasons the Tribunal dismissed the application and confirmed the decision of the delegate not to grant a protection visa.

6. Federal Magistrate Barnes reviewed the Tribunal’s decision and concluded that she could find no error in the it.  In her Honour’s view, the Tribunal,

   ‘engaged in a detailed examination of the circumstances claimed by the applicant, including his own evidence.  The weight to be given to particular evidence was a matter for the Tribunal.  It considered the elements or integers of the applicant’s claims.  The Tribunal was entitled on that basis to arrive at the decision which it did.  It properly considered the question of relocation.  Further, there is nothing in the material before the Court to suggest that any of the procedures adopted by the Tribunal in respect of the process of reviewing the delegate’s decision was unfair.  No jurisdictional error is apparent in the Tribunal’s consideration of the applicant’s claims.’

7. The notice of appeal does not identify any grounds of appeal and the appellant did not provide any written submissions.  I have carefully reviewed the Tribunal’s reasons for decision and the material in the Court Book.  I agree with her Honour’s analysis of the Tribunal’s decision.  I can identify no error in the decision of the Tribunal or in the decision of Barnes FM.  It follows that the appeal must be dismissed with costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:            28 July 2003

Counsel for the Appellant:	There was no appearance for the appellant.
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	28 July 2003
Date of Judgment:	28 July 2003