NBJS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1142

Federal COURT OF AUSTRALIA

NBJS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1142 NBJS AND NBJT v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL NSD 807 of 2005 BRANSON J 2 AUGUST 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 807 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NBJS AND NBJT

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: BRANSON J

DATE OF ORDER: 2 AUGUST 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellants pay the costs of the first respondent fixed in the sum of $3 000.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 807 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NBJS AND NBJT

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: BRANSON J

DATE: 2 AUGUST 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 By an amended notice of appeal the appellants have appealed from a judgment of the Federal Magistrates Court delivered by Federal Magistrate Scarlett on 4 May 2005. In an ex tempore judgment his Honour dismissed the appellants' application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal'). The Tribunal had determined that the appellants, who are Muslim citizens of India, are not entitled to be granted protection visas (see s 36 of the Migration Act 1958 (Cth) ('the Act')). 2 The substantive claim to be entitled to a protection visa has been made by the male appellant. The female appellant has sought a protection visa as his wife. For the appellants to be entitled to protection visas it was necessary for the Tribunal to be satisfied that Australia owed protection obligations in respect of the male appellant because he is a person who: 'owing to well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear is unwilling to avail himself of the protection of that country.' (Article 1A(2) of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees ('the Convention')). 3 The appellants have not had the benefit of legal representation either before the Federal Magistrates Court or before this Court. Their amended application to the Federal Magistrates Court for judicial review listed five grounds of review. In substance these grounds constituted a challenge to the appropriateness of the decision of the Tribunal. They included assertions that the Tribunal's decision was based on irrational and illogical reasoning. Additionally, a failure to observe the requirements of the Act was asserted but not particularised. It was also asserted that the Tribunal failed to consider the appellants' claims. 4 The learned Federal Magistrate carefully reviewed the decision of the Tribunal. That decision was primarily based on a finding that the appellants had relocated from Kerala to Bangalore within India to escape problems experienced by the male appellant in Kerala. Immediately before leaving India for Australia on tourist visas the appellants had lived in Bangalore. 5 The critical findings of the Tribunal were as follows: 'The Tribunal accepts that the applicant has suffered harassment as he claims in Kerala. However, the Tribunal finds that the applicant has relocated to Bangalore where he has suffered no such harm. The Tribunal accepts that life in Bangalore may be more difficult than in Kerala, but finds that the applicants have lived there safely for some three years prior to coming to Australia. The Tribunal accepts that life there may be "harder" than in Kerala but in the light of his evidence, finds that any hardship they have suffered in relocating to Bangalore from Kerala is not sufficiently serious as to make it unreasonable in the particular situation of the applicants. The Tribunal accepts that Muslims in India may feel, on occasion, intimidated as a religious minority. However, the Tribunal accepts the independent evidence that Bangalore, has a population that is 11.6% Muslim and a state government that is controlled by the Congress Party and as such is ruled by a party that has shown itself to be ready to oppose, and if necessary quell, any religious conflict. … [T]he Tribunal finds that if the applicants prefer not to live in Bangalore, they could relocate to an area of India where inter‑religious conflict is rare … The Tribunal accepts that Muslims, as a religious minority, may at times suffer verbal insults and minor physical harassment. However, as indicated in the independent evidence … which the Tribunal accepts, the Tribunal finds that any such distasteful experiences the applicants may experience would be random and rare. Further, the Tribunal does not find that any such harm is sufficiently serious as to constitute persecution. Further, the Tribunal finds that were inter‑religious rioting to eventuate, the independent evidence indicates that state and national authorities would act to protect the applicants.' 6 The Federal Magistrate concluded that there was ample evidence before the Tribunal to support its determination. His Honour further concluded that the process of reasoning adopted by the Tribunal was neither irrational nor illogical. The Federal Magistrate also rejected the other complaints made by the appellants of the decision of the Tribunal. 7 The male appellant has appeared today to represent himself and his wife. The appellants' amended notice of appeal is not easy to understand. Some paragraphs of it appear to have been copied from documents filed in other proceedings. As an example I refer to the ground of appeal that commences: 'The grounds and relief is very much similar with a recent High Court judgment – Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal …'