NBKMA v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1451

FEDERAL COURT OF AUSTRALIA

NBKMA v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1451

NBKMA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD887 OF 2005

BENNETT J
10 OCTOBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD887 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

NBKMA
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

BENNETT J

DATE OF ORDER:

10 OCTOBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The Refugee Review Tribunal be joined as a second respondent to these proceedings.

2.The appeal is dismissed.

3.The appellant is to pay the first respondent’s costs.

4.Direct that, if the respondent wishes to pursue the order sought for costs in a fixed sum, evidence in support of that application be sent to my associate by 4 pm tomorrow.

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	NSD887 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

NBKMA
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	BENNETT J
DATE:	10 OCTOBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of Indonesia claiming persecution on the basis of his Chinese ethnicity and Christian religion.  The Tribunal in its decision handed down on 3 March 2000 affirmed the decision of a delegate of the first respondent not to grant to the appellant a Protection (Class XA) Visa.

2. The Tribunal accepted the factual matters put by the appellant.  In particular, that he lost his cafe and upstairs residence during the riots in May 1998 and that, as a consequence of the anti-Chinese sentiment expressed by sections of the population and his own experiences, the appellant left Indonesia.

3. The Tribunal’s decision was based on a finding that while Chinese Indonesians had experienced incidents of racial discrimination, there was no evidence to suggest that the appellant had experienced harm amounting to persecution.  The Tribunal found that the appellant had no well-founded fear of persecution in the future because of changes that had taken place in Indonesia and the availability of state protection for Chinese Indonesians against persecution.

   Federal Magistrates’ Court

4. In dismissing the application for review in the Federal Magistrates Court, Barnes FM considered the following issues and made the following findings.  Other claims were held to be dealing with the merits of the Tribunal decision.

5. The first issue was whether the Tribunal had constructively failed to exercise its jurisdiction and to afford the appellant natural justice in circumstances where the Tribunal applied the incorrect test of persecution for a Convention reason. Barnes FM found that the Tribunal was aware of the correct test and that it was not established that the Tribunal had failed to apply the correct test.  The Federal Magistrate concluded that ‘in light of the correct statement of law and the Tribunal's recognition that a single act of oppression of sufficient seriousness may amount to past persecution the findings that the Tribunal made were open to it on the material before it’.  Barnes FM noted that the Tribunal’s findings in relation to effective state protection were not challenged by the appellant other than by way of disagreement.

6. The second issue was whether the Tribunal failed to deal with the appellant’s sur place claim of persecution by reason of his religious beliefs.  Barnes FM found that the appellant did not make a claim that he had done any act since leaving Indonesia that would cause him to be persecuted and that his application only indirectly raised any claim based on Christianity.  Her Honour held that while the Tribunal need not have considered the situation of Christians, it did so and found that there was effective state protection.

7. The third issue was whether the Tribunal committed a jurisdictional error in circumstances where it unreasonably and without probative evidence found that the May 1998 riots were a one-off culmination of particular social and political factors.  Her Honour held that the Tribunal statement does not fall within the principles of Wednesbury unreasonableness.

   Notice of Appeal

8. In his notice of appeal the appellant provides the following grounds;

   ‘A.The Tribunal member refused to accept that the [Appellant] has a well founded fear of persecution Convention reasons.

   B.The Tribunal failed to take relevant consideration into account to exercising its power to determine to the applicant as a refugee.

   C.The judge failed to consider the Tribunal decision no basis for making such a statement. The Tribunal accepted that the Applicant lost my shop and residence during the May 1998 riot but did not agree that I suffered persecution for Convention reasons.’

9. The appellant appeared before me at a directions hearing with the assistance of an interpreter.  Consent orders were made directing the appellant to file and serve an amended notice of appeal giving full particulars of each ground of appeal relied upon if he wished to do so.  No amended notice of appeal has been received. 

10. The appellant appeared before me today assisted by an interpreter.  When asked what he wished to say in support of his appeal he mainly raised factual matters which do not amount to jurisdictional error.

11. The first ground of the notice of appeal simply disagrees with the conclusion of the Tribunal or, alternatively, could be said to raise factual matters.  I pressed the appellant with respect to the relevant considerations to which he was referring in the second ground.  He was unable to refer to any matter that would have amounted to jurisdictional error on the part of the Tribunal.  In that regard I note again that the Tribunal accepted the factual matters that were put to it by the appellant.  Indeed, that is accepted by the appellant in his third ground of the notice of appeal.

12. To the extent that the appellant is inviting the court to undertake a review of the Tribunal’s assessment of the merits of his claims that is something the court cannot do. There is nothing that has been before the Court to establish that the Tribunal failed to address the integers of the appellant's claim as presented to the Tribunal by him. The matters that were relied upon by the Tribunal in coming to its conclusions were matters within section 424A(3) of the Migration Act 1958 (Cth).

13. In the circumstances where no jurisdictional error has been shown by the Tribunal and no error on the part of the Federal Magistrate the appeal must be dismissed.  The appellant is to pay the first respondent’s costs. 

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:             10 October 2005

The appellant appeared in person with the assistance of an interpreter.

Counsel for the Respondent:	J.Mitchell
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	10 October 2005
Date of Judgment:	10 October 2005