NAKP v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 255

FEDERAL COURT OF AUSTRALIA

NAKP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 255

MIGRATION – appeal from Magistrate – error in identifying appellant’s religion by Magistrate – error had no bearing on decision – whether error in judgment below

NAKP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 961 OF 2002

TAMBERLIN J
SYDNEY
19 MARCH 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 961 OF 2002

BETWEEN:	NAKP APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	19 MARCH 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

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 961 OF 2002

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

JUDGE:	TAMBERLIN J
DATE:	19 MARCH 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Magistrate delivered on 30 August 2002 in which the Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal (“RRT”) handed down on 15 May 2002.  The Magistrate formed the view that there had been no error of law identified and the notice of appeal filed by the appellant contends that the Magistrate erred in law because he identified the religion of the appellant as a Hindu instead of a Muslim.  There was no dispute that in his reasons for judgment, the Magistrate referred to the appellant as being of Indian nationality and of Hindu religion.  It is common ground that in fact the appellant was of the Muslim religion as found by the RRT.

2. When the matter came on for hearing the appellant was asked if he wished to say anything further in relation to the matter but he has made no submissions apart from, in substance, relying on the ground of appeal itself.  The principal contention of the respondent is that, even if there was an error in the Magistrate's decision as reflected in [3] of the judgment in describing the appellant as being of Hindu religion, it would not and could not reasonably be thought to affect the outcome of the proceeding.

3. According to the respondent this is because the gravamen of the appellant's case was that he was subject to detriment and harassment as a consequence of his father-in-law taking steps to require him to join a Muslim terrorist group and he did not wish to do so.  As a consequence, the appell+ant says that he was attacked on a number of occasions at the instigation of his father-in-law.

4. This is a question of fact on which the RRT has made adverse findings as to the father-in-law being involved in the attacks or procuring the attacks.  The RRT relied on the finding that if the appellant ever had a well-founded fear of serious harm amounting to persecution for a Convention reason, he would neither have remained in the United Arab Emirates, where he was based, for a further nine years, after an attack, nor would he have regularly returned to Kerala, the site of the first attack, where he says he suffered and where he claims he would be at risk. 

5. Having regard to the reasoning of the RRT and the findings, I am not persuaded that any error has been demonstrated, nor am I persuaded that the mis-statement of the appellant's religion had any bearing on the ultimate result, having regard to the way in which the case of the appellant was framed before the RRT.  Accordingly, I dismiss the appeal from the Magistrate with 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:            31 March 2003

The Appellant appeared in person.
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	19 March 2003
Date of Judgment:	19 March 2003