NAIJ v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1544

FEDERAL COURT OF AUSTRALIA

NAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1544

NAIJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N1119/03

TAMBERLIN J
SYDNEY
15 DECEMBER 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1119 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	NAIJ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN
DATE OF ORDER:	15 DECEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The appeal is 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 1119 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

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

JUDGE:	TAMBERLIN J
DATE:	15 DECEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of Federal Magistrate Raphael, refusing an application to review a decision of the Refugee Review Tribunal (“the RRT”) delivered on 6 December 2002.  The RRT had affirmed a decision not to grant a protection visa.

2. The appellant claims to have a well founded fear of persecution on religious grounds.  His fear arises out of a business association which he had in his home state of Kerala, India, with a Mr Nair.  The appellant is a Christian and Mr Nair is said to be a Hindu and a member of a well established and widespread Hindu organisation, namely the Rashtriya Swayamsenak Sangh (“RSS”) that espouses a return to Hindu values and cultural norms.

3. The RRT found that the appellant is a citizen of India, that he has been having a dispute since 1999 with Mr Nair, who was a former business partner, and that that matter is unresolved.  The appellant stated to the RRT that Mr Nair had destroyed the business in which the appellant had the major interest.  At the hearing before me today, the appellant has said that the RRT erred, in his view, in reaching the conclusion that it was safe for him to return to India.  He fears that any protection which he may get on returning to India would not last more than several days, and that if returned, he would be at risk of serious harm.

4. The RRT found, on the evidence, that there is no Convention reason for which the appellant could say that he has a well-founded fear of persecution.  The first finding of the RRT was that the appellant was not being targeted for reason of religion, which was the basis of the appellant's claim.  The RRT was not satisfied that the animosity of Mr Nair, a Hindu associated with the RSS, was motivated by religious intolerance, since it only dated from the collapse of their joint business venture.  The RRT did not accept that the appellant's home state of Kerala would not be willing or able to offer protection to the appellant if returned.  The availability of protection and the real reason for the fear are questions of fact for determination by the RRT.

5. There is nothing in the submissions put to me, or in the grounds of appeal, to indicate that there has been any error which could provide any proper basis for the grant of judicial review by the learned Magistrate.  In these circumstances, I am not satisfied that any error of law or principle has been shown in the decision of the Magistrate, or that there has been any error of law or principle in the reasoning of the RRT.  I therefore dismiss the appeal and order that the appellant should pay the respondent's costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:            21 January 2004

The Appellant appeared in person with the assistance of an interpreter.
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	15 December 2003
Date of Judgment:	15 December 2003