Applicant A83 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 560

FEDERAL COURT OF AUSTRALIA

Applicant A83 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 560

MIGRATION – appeal from decision of Refugee Review Tribunal affirming refusal to grant protection visa – whether applicant had well-founded fear of persecution – effective protection in India.

Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 cited
NAGV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 144 cited

APPLICANT A83 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS; MEMBER, REFUGEE REVIEW TRIBUNAL AND PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL

S 654 OF 2003

LANDER J
7 MAY 2004
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 654 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

APPLICANT A83 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

MEMBER, REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

LANDER J

DATE OF ORDER:

7 MAY 2004

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.        The application for judicial review is dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 654 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

APPLICANT A83 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

MEMBER, REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:	LANDER J
DATE:	7 MAY 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (RRT) given on 19 December 2002.

2. On 18 February 2003, the applicant commenced proceedings in the High Court of Australia seeking the issue of the constitutional writs.  The matter was remitted by Hayne J to this Court on 11 June 2003.

3. The applicant is a citizen of Nepal.

4. He claimed that he was at risk from the insurgent Maoists in Nepal.  He had been a member of the Nepalese Congress Party and an activist with that party.  Originally, he claimed that he was at risk from the Nepalese Congress Party but, in his oral evidence, withdrew that claim.  He said, in evidence, that he was in good standing with the Congress Party and with the authorities of Nepal.

5. He claimed, however, that he continued to receive threats from the Maoists and he was in fear of them.

6. He said that on one occasion he had been exiled from Nepal and had lived in India.  The applicant’s family lives in Kathmandu.

7. The RRT found that the applicant had been a longstanding member of the Nepalese Congress Party, the largest political party in the country and, presently, in power.

8. However, it found that he had a low profile in politics and, in particular:

   ‘I am not satisfied that his profile is one of any political concern to the Maoists while he is in Kathmandu although I accept that he could be vulnerable in areas where there are strong Maoist supports [sic].’

9. The RRT found that Kathmandu was a safe city and that the applicant could remain there and enjoy protection.

10. Having made that finding, the RRT continued:

    ‘Furthermore, even if the Applicant did face harm at the hands of the Maoists in Nepal which I do not find is the case, I find that he could find protection from that harm by moving to India where he has effective protection through an accord between his country and India.’

11. The RRT followed the decision in Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543.

12. The RRT’s decision is predicated on two findings.  First, because the applicant could reside with his family in Kathmandu, the applicant did not have a well-founded fear of persecution if he were returned to Nepal.  Alternatively, the RRT found that he could be removed to India and enjoy the protection of the Indian authorities.

13. It is the applicant’s contention that the RRT was wrong to follow the decision in Minister for Immigration & Multicultural Affairs v Thiyagarajah.  He argued that the Full Court of this Court had doubted the correctness of that decision in NAGV v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCAFC 144. The appellant, in that case, had sought and obtained leave to appeal to the High Court on the same day as this application was heard. The applicant contended that I should delay making my decision until the outcome of the appeal is known in NAGV v Minister for Immigration and Multicultural and Indigenous Affairs.  Of course, if I thought that the outcome of the appeal in that matter might affect the decision at which I might arrive in this matter, I would adjourn this matter pending the hearing of the High Court appeal.

14. However, the point advanced by the applicant, even if it were good, does not assist the applicant to obtain an order quashing the decision of the RRT.

15. The applicant failed before the RRT for the two reasons which I have mentioned above.  Even if the RRT’s alternative reasons for concluding that a protection visa should not issue was wrong, the applicant’s application for a review would fail because he could not establish that he had a well-founded fear of persecution in Nepal.

16. In those circumstances, I do not need to wait upon the decision of the High Court as to whether the decision in Minister for Immigration & Multicultural Affairs v Thiyagarajah is correct or otherwise.  Even if the High Court allowed the appeal, I would be bound to dismiss the application for judicial review for the other reason given by the RRT.

17. The application for judicial review is dismissed.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated:             7 May 2004

Counsel for the Applicant:	M Clisby
Solicitor for the Applicant:	M W Clisby
Counsel for the Respondent:	M Roder
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	30 April 2004
Date of Judgment:	7 May 2004