NAXK v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 205

FEDERAL COURT OF AUSTRALIA

NAXK v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 205

NAXK and NAXL v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 1796 of 2003

BRANSON J
2 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1796 of 2003

BETWEEN:	NAXK and NAXL APPLICANTS
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	2 MARCH 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicants pay the respondent’s costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1796 of 2003

BETWEEN:	NAXK and NAXL APPLICANTS
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BRANSON J
DATE:	2 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicants have applied to the Court for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) whereby a decision of a delegate of the respondent not to grant the applicants protection visas was affirmed. 

2. The applicants are husband and wife.  The husband is a citizen of India and the wife is a citizen of Malaysia.  The wife’s claim to be entitled to a protection visa is based on her membership of the husband’s family unit.  She has not asserted an independent claim to be entitled to a protection visa.  The applicants appeared today without legal representation.  The husband addressed the Court orally and the wife expressly adopted his submissions. 

3. The husband’s claim to be entitled to a protection visa is based upon asserted opposition to his marriage from both his own family and his wife’s family.  The husband claims to have received death threats from people in Malaysia who have said that he cannot escape them even in India.  He also claims to have been kidnapped while in Malaysia and taken to Thailand from where, after being beaten, he escaped eventually arriving in Australia via Malaysia.

4. The Tribunal made no positive findings as to the truth of the husband’s claims.  Assuming the truth of his claims, the Tribunal concluded that:

   1.the husband would enjoy the protection of the Indian authorities if threatened with criminal conduct in India;

   2.the harm which the husband claims to fear if required to return to India is harm of a private nature rather than harm for a Convention reason;

   3.the applicants could relocate to a part of India away from where the husband’s family resides; and

   4.as the husband has a permanent visa to live in the Netherlands the applicants could live there.

5. The application in this matter purports to identify seven grounds upon which the application is made.  The first ground, in effect, alleges actual bias in the Tribunal.  No particulars of this allegation have been provided and it finds no support in the material before the Court.  The applicants did not place reliance on this allegation when making oral submissions to the Court today.  It need not be considered further.  The other six purported grounds of review, in effect, challenge the findings of fact made by the Tribunal and assert that it would not be safe for the applicants to live in India.  They do not constitute grounds upon which the Court could set aside the decision of the Tribunal.

6. By his oral submissions the husband claimed that the Tribunal wrongly believed that he was entitled to reside in the Netherlands.  He indicated that his visa entitling him to reside in the Netherlands expired in 2002.  It is not necessary for me to determine whether the Tribunal erred concerning this issue.  Nor is it necessary for me to give consideration to the issue of whether, as the Tribunal concluded, the applicants could safely relocate to an area of India away from the husband’s family.  The husband submitted to the Court that, although he and his wife could readily relocate, their new place of residence would not be able to be kept secret from their respective families. 

7. The issue that was critical to the Tribunal’s decision was its finding that the husband does not have a well‑founded fear of persecution for a Convention reason.  A fear of persecution for a Convention reason is a fear of being persecuted for reason of race, religion, nationality, membership of a particular social group or political opinion. 

8. I have given consideration to whether the Tribunal ought to have characterised the husband’s fear as a fear of persecution for reason of membership of a particular social group, namely, for membership of his caste.  However, I have concluded that the decision of the Tribunal is not open to judicial review on this basis.  No basis for a challenge to the conclusion of the Tribunal that the persecutions feared by the applicants is simply persecution for reason of their respective families opposition to their marriage has been identified.  The Tribunal expressly found that discrimination against a person based on caste is illegal in India and that the Indian authorities are reasonably willing to take action in respect of criminal acts against its citizens ‑ even where those acts involve family members. 

9. If the issue of a particular social group is put to one side, there was no evidence before the Tribunal which supported a conclusion that the persecution feared by the applicants is persecution for a Convention reason. 

10. In my view no basis has been identified upon which a decision of the Tribunal may be reviewed by this Court.  The application is dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:            9 March 2004

Counsel for the Applicants:	The Applicants appeared in person
Counsel for the Respondent:	J Smith
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	2 March 2004
Date of Judgment:	2 March 2004