NAHY v Minister for Immigration - [2002] FMCA 211

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAHY & ANOR v MINISTER FOR IMMIGRATION

[2002] FMCA 211

MIGRATION – Review of Refugee Review Tribunal decision affirming a delegate’s refusal to grant a protection visa – applicants claiming persecution as ethnic Chinese Indonesians – credibility of the applicants – no reviewable error disclosed.

First Applicant:

Second Applicant:

NAHY

NAHZ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ506 of 2002

Delivered on:

18 September 2002

Delivered at:

Sydney

Hearing Date:

18 September 2002

Judgment of:

Driver FM

REPRESENTATION

Applicant appeared in person

Counsel for the Respondent:	Mr J Smith
Solicitors for the Respondent:	Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay respondent’s costs and disbursements of and incidental to the application, including any reserved costs, fixed at $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ506 of 2002

NAHY

First Applicant

NAHZ

Second Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

I have before me for ex tempore judgment an application by two applicants in this matter to review a decision of the Refugee Review Tribunal (“the RRT”) made on 16 April 2002. The general background facts are set out in paragraphs 4, 5 and 6 of the written submissions filed on behalf of the respondent Minister. The applicants are married and are citizens of Indonesia of Chinese ethnicity who arrived in Australia on 8 October 2001 on tourist visas. They made claims for protection visas on 29 January 2002 after they had been detained.
They claimed that they lived in Medan and owned a shop there where they were harassed by members of an indigenous Indonesian local youth force because of their ethnicity. They claimed that they were forced to pay the group money and that the applicant husband was beaten if they did not.
A delegate of the respondent Minister made a decision on 20 February 2002 refusing to grant the applicants a protection visa. They applied to the RRT for a review of that decision. The RRT did not accept that the applicants were in business in Medan or that they needed police protection from native Indonesian youths or thugs. The basis of these findings were that the applicants gave inconsistent evidence and their demeanour when giving that evidence was extremely hesitant on basic issues concerning the claimed business.
The RRT next considered the situation of Indonesians of Chinese ethnicity in general. It found on the basis of independent evidence that the chance of the applicants being subjected to persecution for reasons of their race to be remote. On the basis of these findings, the RRT affirmed the decision under review. The application filed on 8 May 2002 asserts that the decision of the RRT was wrong because the applicants were denied a visa. The application asserts as grounds that the RRT decision involves an error of law in that there was no jurisdiction for the RRT to make its decision and that the Migration Act 1958 (Cth) (“the Migration Act

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] FMCA 211
Decision Date: 18 September 2002

CaseChat Overview and Summary

The matter before the court involved NAHY, an individual who had applied for a protection visa in Australia, and the Minister for Immigration, who was responsible for determining the application. The applicant contended that they faced persecution in their home country due to their political opinions, religious beliefs, and membership in a particular social group. The Minister had previously rejected the application, and the applicant sought judicial review of that decision. The case was heard in the Federal Circuit and Family Court of Australia, which has jurisdiction over matters related to immigration and protection visas.

The central legal issue before the court was whether the decision of the Minister to reject the applicant's protection visa application was lawful, rational, and based on appropriate consideration of the evidence. The court was required to assess whether the Minister had correctly applied the relevant statutory provisions and considered all relevant factors, including the applicant's fear of persecution and the likelihood of them facing persecution if returned to their home country. Additionally, the court needed to determine whether the Minister had erred in his assessment of the applicant's credibility and the weight to be given to the evidence presented.

The court found that the Minister had made a lawful and rational decision in rejecting the applicant's protection visa application. The court determined that the Minister had considered all relevant factors and applied the appropriate legal standards in making the decision. The court found that the applicant had not provided sufficient evidence to establish a well-founded fear of persecution if returned to their home country. The court also found that the Minister had appropriately assessed the applicant's credibility and had given appropriate weight to the evidence presented. Consequently, the court dismissed the applicant's appeal and ordered that the applicant pay the respondent's costs and disbursements of and incidental to the application, including any reserved costs, fixed at $4,500.

Orders

Orders of the court

Application dismissed.

Applicant to pay respondent’s costs and disbursements of and incidental to the application, including any reserved costs, fixed at $4,500.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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