NBDT v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 1188

FEDERAL COURT OF AUSTRALIA

NBDT v Minister for Immigration & Multicultural & Indigenous Affairs
[2006] FCA 1188

NBDT AND NBDU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 425 OF 2006

DOWSETT J
9 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 425 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

NBDT
First Appellant

NBDU
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND INDIGENOUS AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	9 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The first appellant pay the first respondent’s costs of the appeal.

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	NSD 425 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

NBDT
First Appellant

NBDU
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE:	9 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Magistrate declining to review a decision of the Refugee Review Tribunal (the “Tribunal”).  The appellant was invited to attend at the hearing of the Tribunal, but did not do so.  He was born in India on 11 August 1969 and entered Australia on 6 June 2001, or shortly thereafter, on a short-term visa.  He subsequently applied for a protection visa.  The basis of this claim appears to have been fear for his life at the hands of ‘Muslim extremists’, he being Hindu.  He claimed to be an active member of the PJP.  This is a pro-Hindu political party.  He owned his own factory located in a largely Muslim area.  He says that he was threatened.  Following a particular incident involving a train, his factory was destroyed.  He was attacked and spent two weeks in hospital.  The police took no proper action.  He received many other threats and suffered another attack in May 2003.  He feared for his life and went to Malaysia but returned to India because he missed his family.  They were again threatened.  He decided to come to Australia.

2. The Tribunal considered that the appellant’s claims were lacking in particularity.  At pages 6 and 7 of its reasons the Tribunal identifies areas in which particularity was lacking.  They are obviously areas which would have been explored had the appellant appeared at the Tribunal hearing.  Because he did not do so, this was not possible.  In those circumstances the Tribunal was entitled to conclude that it was not persuaded as to the validity or veracity of the appellant’s claims.

3. The Federal Magistrate considered the Tribunal’s reasons carefully and came to the same conclusion, namely that the Tribunal’s finding was justified by the state of the material which was before it.  The appellant had asserted jurisdictional error.  The Magistrate examined the record and was unable to find any.  Notwithstanding this, the appellant continues to allege error, including jurisdictional error, infecting the Tribunal’s decision.  It is alleged that the Tribunal adopted ‘an unduly (?) approach to the well-founded fear’.  No doubt the missing word is “restrictive” or some such word.  However, the appellant has not explained how the Tribunal erred, or identified any particular aspect of the reasoning to which the complaint relates.

4. It is then alleged that the Tribunal was required to assess the harm from the perspective, ‘of the persecutor instead of assessing the harm from the perspective persecute’.  I take this to mean, contrary to the text, that the Tribunal was required to assess harm from the perspective of the persecuted person or perhaps it addresses the motive of the persecutor.  However, again, no attempt has been made to identify the aspect of the reasons which demonstrates this alleged error.  The appellant also complains that:

   ‘The Tribunal adopted a line of questioning designed to establish the harm from the perspective of the applicant persecute, asking why he would be harmed rather than addressing as to the motive.’

5. That misrepresents the reasons of the Tribunal.  The point is that the Tribunal simply rejected the appellant’s claim. 

6. It is said that the Tribunal did not consider the appellant’s fear of persecution.  Similar comments apply.  It is said that the Tribunal relied exclusively on country information and ignored the appellant’s claim, and that the Magistrate failed to recognise this as demonstrating jurisdictional error.  However the point of the proceedings in the Tribunal was to consider the appellant’s claims in the context of the country information.  Indeed, much of the country information made it very difficult for the Tribunal to accept the appellant’s case, particularly as it demonstrated that the population of the relevant province of India was overwhelmingly Hindu.  However the point is that the Tribunal rejected this claim.  It is said also, that the Tribunal failed to disclose the basis of its decision.  That is plainly not the case.

7. The appellant’s complaint is simply that the Tribunal did not accept his claims.  Had he attended before the Tribunal and responded to questioning, the outcome may have been different, but he chose not to do so.  In those circumstances I see no basis for challenging the Tribunal’s conclusions; nor am I able to identify any jurisdictional error.  The appeal must be dismissed.

8. I order that the first appellant pay the first respondent’s costs of the appeal.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:       1 September 2006

Counsel for the Appellants:	The First Appellant appeared in person. The Second Appellant did not appear.
Solicitor for the First Respondent:	Sparke Helmore
Date of Hearing:	9 August 2006
Date of Judgment:	9 August 2006