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.