Applicant A96 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 565
•30 APRIL 2004
FEDERAL COURT OF AUSTRALIA
Applicant A96 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 565
MIGRATION – well-founded fear of persecution – relocation within Nepal feasible – well-founded fear of persecution established only within village – finding of possible relocation not unreasonable
Migration Act 1958 (Cth)
Multicultural Affairs v Prathapan (1998) 156 ALR 672 cited
APPLICANT A96 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, PHILIPPA MCINTOSH, MEMBER, REFUGEE REVIEW TRIBUNAL AND THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
S 666 of 2003
LANDER J
30 APRIL 2004
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S 666 OF 2003
ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA
BETWEEN:
APPLICANT A96 OF 2003
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENTPHILIPPA MCINTOSH, MEMBER, REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENTTHE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENTJUDGE:
LANDER J
DATE OF ORDER:
30 APRIL 2004
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1. Application dismissed.
2. The applicant to pay the first respondent’s costs.
3. No order for costs as to the second and third respondents.
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 666 OF 2003
ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA
BETWEEN:
APPLICANT A96 OF 2003
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENTPHILIPPA MCINTOSH, MEMBER, REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENTTHE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT
JUDGE:
LANDER J
DATE:
30 APRIL 2004
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Refugee Review Tribunal (RRT) made on 20 May 2002.
On 21 February 2003, the applicant commenced proceedings in the High Court of Australia seeking the issue of the constitutional writs quashing the decision of the RRT and an order remitting the matter back to the RRT for further consideration.
On 11 June 2003, Hayne J remitted the matter to this Court for hearing.
The applicant claims to be a citizen of Nepal. He arrived in Australia on 9 July 2000 and, on 20 July 2000, he lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) (the Act).
On 27 July 2000, the Minister for Immigration and Multicultural and Indigenous Affairs’ delegate refused to grant a protection visa.
On 11 August 2000, the applicant applied to the RRT for a review of that decision.
The RRT found that the applicant was a national of Nepal.
It accepted the applicant’s evidence that some time in 1996 he was approached in his village, Lamjung, by friends and asked to join the Maoists. He refused. Because he had been asked and had refused, and because of his fear of reprisal from the Maoists, he left Nepal to live in Hong Kong. His claim was that if he returned to Nepal he would be subject to persecution by the Maoists.
The RRT found that if he returned to Lamjung he may be at risk of some form of harm because of the political opinion imputed to him. It found that that perception could arise from his past support for the Nepalese Congress Party.
It further found, however, that he could return to Nepal provided he did not live in Lamjung or its surroundings. It found:
‘I am satisfied that relocation within Nepal, away from Lamjung, is a reasonable option for [the applicant]. He has a demonstrated ability and willingness to live and work in new environments, having lived both in Hong Kong and Sydney for several years in total. He is reasonably employable. Although his parents remain in the village, it is apparent from his evidence that they are both able and willing to visit him in other parts of the country. If he were to return to Nepal, in my view there is no reason why he would need to return to Lamjung at all. Therefore [the applicant] does not have a well-founded fear of Convention-related persecution in relation to Nepal.’
The applicant argued that the Tribunal erred, because it failed to find whether the State was capable of offering him protection.
In my opinion, the RRT was entitled to consider whether the applicant had a well-founded fear of persecution outside the village from which he had come.
It was not unreasonable, on the RRT’s findings, for the applicant to relocate himself. A person who has a fear of persecution should first seek to avail himself or herself of the protection of that person’s State.
The RRT was entitled, therefore, to consider whether, in all the circumstances, it was reasonable to expect that the applicant relocate to some other part of Nepal.
It is implicit in the RRT’s decision that it considered the applicant could avoid any potential persecution by relocating to a place outside of Lamjung and its surroundings. If the applicant were not subject to persecution then, of course, there was no need for the RRT to consider whether the Nepalese authorities could offer him protection. There was no suggestion he would be at risk of persecution by the authorities. The risk was from the Maoists. If by relocating to another part of Nepal there was no risk from the Maoists, then the question of protection did not arise. The matters considered in Minister for Immigration and Multicultural Affairs v Prathapan (1998) 156 ALR 672 simply do not arise.
If, on relocation, he would have been likely to suffer persecution, then the question of protection would have arisen. However, that was not the case.
In my opinion, the application should be dismissed.
The order of the Court will be application dismissed. The applicant to pay the first respondent’s costs. No order for costs as to the second and third respondents.
I certify that the preceding eighteen (18) 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 First, Second and Third Respondents: M Roder Solicitor for the First, Second and Third Respondents: Sparke Helmore Date of Hearing: 30 April 2004 Date of Judgment: 30 April 2004
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