NALN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 1244

FEDERAL COURT OF AUSTRALIA

NALN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1244

NALN OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 937 OF 2002

SACKVILLE J
SYDNEY
4 OCTOBER 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 937 OF 2002

ON APPEAL FROM A MAGISTRATE OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NALN of 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	4 OCTOBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s 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 937 OF 2002

ON APPEAL FROM A MAGISTRATE OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NALN of 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	4 OCTOBER 2002
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Magistrate, Driver FM.  Driver FM dismissed an application by the appellant “for a review against the decision [of the Refugee Review Tribunal (“RRT”)] given on 22 May 2002.  The RRT affirmed a decision of a delegate of the respondent (“the Minister”) not to grant the appellant a protection visa.

2. Driver FM, although not identifying the source of the Federal Magistrates Court’s jurisdiction, was exercising the jurisdiction conferred on that Court by s 483A of the Migration Act 1958 (Cth) (“Migration Act”). Section 483A confers on the Magistrates Court the same jurisdiction as the Federal Court has in relation to a matter arising under the Migration Act. The Federal Court’s jurisdiction includes that conferred by s 39B(1) of the Judiciary Act 1903 (Cth).

3. The appeal to this Court is brought pursuant to s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”). The Chief Justice has made a direction pursuant to s 25(1A) of the Federal Court Act that it is appropriate for the appellate jurisdiction of the Court in relation to the appeal to be exercised by a single Judge.

4. The appellant is a citizen of India who arrived in Australia on 10 August 2000.  He is a Muslim.  The appellant originally claimed to fear persecution in India by reason of his religion.  However, his application for a protection visa was refused by the delegate on 30 August 2000 and, as I have noted, the RRT affirmed the delegate’s decision.

5. The case is unusual.  The reason for this observation is apparent from the following extracts from the RRT’s reason for decision:

   “The applicant was asked why he had come to Australia.  The applicant stated that a friend of his was killed and that it was not safe.  The applicant then went on to state that his brother and a film producer by the name of Brett Buckle had organised a group of some seventeen Indians involved in the film industry to come to Australia to make a film in Australia.  The applicant stated that each person was required to pay around $5,000 and that he was responsible for collecting the money.  The applicant stated when they arrived in Australia the movie did not eventuate and that no money was returned to them.  The applicant stated that his brother left for South Africa some nine months ago and that the producer Brett Buckle went to England.  The applicant stated that because he had collected the money back in India he has received threats on his life and cannot return to India.

   The applicant was asked why he thought he was a refugee.  The applicant stated that people back in India wanted him because they had lost their money and that although he was not responsible for this, he was blamed because he had been the person to collect the money.

   The applicant was asked what would happen if he went back to India.  The applicant stated that he would be hassled and that his wife had written to him telling him that people were asking after him and had warned that wherever he went in India they would find him.

   …

   The applicant stated in conclusion that he did not want refugee status but that he just wanted a bit more time before he went back to India so that the people who wanted him could cool off a bit.  The applicant stated that if he goes back to India they will not leave him in peace and he fears for his life.”  (Emphasis added.)

6. In view of what transpired at the hearing, it is hardly surprising that the RRT affirmed the delegate’s decision.  The RRT said this:

   “The Tribunal does not accept that the applicant did face harm or will face harm on his return to India because he is a Muslim.  The Tribunal rejects these claims because the applicant at the hearing did not make such claims.  When specifically asked if he had experienced difficulties as a Muslim the applicant made reference to a bomb explosion in Coimbatore but enunciated no other difficulty.

   In the hearing the applicant claimed that he was implicated in a failed business venture and that if he returned to India he feared that the police would arrest him and that some persons may seek revenge and attempt to kill him.  The applicant further stated that he did not want refugee status but just a bit more time in Australia.

   The Tribunal accepts the applicant’s claim that he was embroiled in a failed business venture and that the applicant fears harm as a result of this on his return to India….  [I]n order to qualify as a refugee the harm which a person fears must be for one or more of the reasons enumerated in the Convention definition.  The Tribunal finds that the applicant’s fear of harm is not for a Convention reason.  The motivation for the infliction of harm on the applicant as stated by the applicant in the hearing is for economic reasons.  The applicant at the hearing made no claim that the motivation was related to his religion or to any other Convention reason.

   Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason.”

7. The appellant’s application to the Magistrates Court did not identify any ground on which it was said that the RRT had erred.  Indeed, in an affidavit made in the proceedings in the Magistrates Court, the appellant repeated his concern that he might face trouble in India because of the “cheating” perpetrated on Indian investors.

8. Again not surprisingly, Driver FM gave brief reasons for dismissing the application.  He concluded that the RRT had been correct in finding that the appellant did not fear persecution in India for a Convention reason.  Driver FM pointed out that the appellant had admitted that he was not seeking refugee status but simply wanted to stay in Australia until it was safe for him to return to India.  Driver FM also noted that to that point the appellant had achieved his objective.

9. The notice of appeal filed in this Court does not identify any ground of appeal.  Nor has the appellant sought to advance any argument in support of the appeal.  This, too, is not surprising since Driver FM’s conclusion was inevitable having regard to what transpired before the RRT and before him.

10. The appeal is without merit.  Clearly enough, it has been brought simply to gain the appellant more time in this country, although doubtless the appellant is not the first person to invoke the appellant jurisdiction of the Court for that reason.

11. The appeal must be dismissed.  The appellant must pay the respondent’s costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice SACKVILLE .

Associate:

Dated:            4 October 2002

The appellant was self represented.

Solicitor for the Respondent:	Ms B Rayment appeared on behalf of Sparke Helmore
Date of Hearing:	3 October 2002
Date of Judgment:	4 October 2002