NAOO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 26

FEDERAL COURT OF AUSTRALIA

NAOO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 26 MIGRATION – protection visa – Refugee Review Tribunal – appeal from decision of Judge of Court exercising jurisdiction of the Court to review Tribunal decision – Tribunal took into account relevant considerations – alleged errors non-jurisdictional – reviewing Court cannot conduct merits review – appeal dismissed. Migration Act 1958 (Cth)

NABC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 317 cited Muin v Refugee Review Tribunal [2002] 190 ALR 601 cited NAOO V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 1319 OF 2003 BEAUMONT, LINDGREN & TAMBERLIN JJ 13 FEBRUARY 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1319 OF 2003

BETWEEN: NAOO

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: BEAUMONT, LINDGREN & TAMBERLIN JJ

DATE OF ORDER: 13 FEBRUARY 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. 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 1319 OF 2003

BETWEEN: NAOO

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: BEAUMONT, LINDGREN & TAMBERLIN JJ

DATE: 13 FEBRUARY 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT THE COURT:

Introduction 1 This is an appeal from a decision of a Judge of the Court dismissing an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') affirming a decision of the respondent Minister's delegate refusing to grant the appellant a protection visa. 2 The primary Judge outlined the history of the matter to the following effect: · The appellant is almost 23 years of age, a Fijian national who is of Indian background, speaking Fijian Hindi. The appellant arrived in Australia on 22 December 2001 and thereafter, with the assistance of a migration agent, he promptly applied for a protection visa on 15 January 2002. · The appellant was born in Nousori in Fiji and had lived there all his life. He claimed to fear persecution because he was a Fijian Indian. He said that he had witnessed attacks on Fijian Indians after the coup of George Speight, which took place in May 2000 and he said that he feared that indigenous Fijians would harm him. He said that he could not rely upon police protection because the police were hopeless and racist. He said that his family, including mother, grandmother and brothers, lived in Nousori and his younger brother was still at school. · When asked by the Tribunal why he left Fiji, the appellant said that he was fearful and that he wanted to earn more money to support his family. The appellant indicated to his Honour that he did not come to Australia for economic reasons, but came because he was in fear of his safety. · The appellant said that he was mugged in Suva on the day of the coup, his jewellery and money having been taken at knife point. He thereafter remained in Fiji for some 18 months. When the Tribunal put to the appellant that the violence had been brought under control shortly after the coup, the appellant responded in terms similar to those he used before his Honour, that is, that violence was a regular problem. · He said that he walked between his home and bus stop for some 30 minutes and that indigenous Fijians would ask him for money, especially at night. The Tribunal took it, and his Honour understood from the appellant, that these sorts of incidents made him somewhat fearful of how he would be treated by indigenous Fijians. The Tribunal asked him why he had not moved to Suva. The appellant agreed that the towns and cities were safe, but that if he had rented a place in Suva, he could not have given that money to his family.