Lama v Minister for Immigration and Multicultural Affairs

[2000] FCA 546

FEDERAL COURT OF AUSTRALIA

Lama v Minister for Immigration & Multicultural Affairs [2000] FCA 546

ANG LAMA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1287 OF 1999

HELY J
5 APRIL 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1287 OF 1999

BETWEEN:	ANG LAMA APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	5 APRIL 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        Application 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 1287 OF 1999

BETWEEN:	ANG LAMA APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	5 APRIL 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This matter was fixed for hearing on 17 March 2000 when there was no appearance by the applicant.  That date was fixed by the Registrar at a directions hearing held on 18 November 1999 when the applicant was represented by Mr Newman, solicitor, who attended on the instructions of a migration agent.  When the applicant failed to appear on that occasion I adjourned the matter until this morning and directed that notification be given to the applicant by letter sent to his address for service.

2. A letter was posted to him on 17 March 2000 by the respondent's solicitors.  There has been no reply to that letter and no return of it upon the basis that the applicant is no longer at that address.  On previous occasions the respondent's solicitor has attempted to forward a bundle of documents to the applicant at his address for service which were returned marked "return to sender, unknown at this address".  The evidence also indicates that the respondent's solicitor has contacted Mr Newman and the migration agent who instructed him.  Neither of those persons currently acts for the applicant and each professes to be unaware of the applicant's present whereabouts.

3. I am not certain that the applicant has received actual notice that the matter was fixed for hearing on 17 March 2000 or indeed that the hearing was adjourned until today.  But I am satisfied that the respondent's solicitor has done all that is reasonably practicable to bring to the applicant's attention the dates on which the matter was fixed for hearing.

4. I have read the relevant documents.  On the papers, the applicant's case is a hopeless one.

5. The application for a protection visa discloses that the applicant is a citizen of Nepal who arrived in Australia on 16 November 1995 travelling on a Nepalese passport.  The applicant's grandfather migrated from Tibet to Nepal and the family are part of the Sherpa Ethnic Group.  The applicant was born in Nepal.  After graduating in civil engineering, he was employed as a civil engineering technician with the Department of Irrigation from about 1988 until he left Nepal.  The applicant's claim before the Refugee Review Tribunal (“RRT”) was that he had a well-founded fear of persecution for reason of his ethnicity, namely Tibetan Sherpa, were he to be returned to Nepal.  RRT assessed that claim.  It accepted that the applicant may have been taunted and picked upon because of his distinguishing facial features which identify him as being a Botier Sherpa.  The incidents, whilst humiliating and distressing, were assessed as relatively minor.  RRT concluded that they did not amount to persecution.  RRT also considered that if the applicant was denied promotion, it was not because of his ethnicity, but because he did not offer a bribe, bribery being institutionalised in Nepal.  Further, RRT considered that whilst there may have been police inactivity as a result of a complaint by the applicant, it was clear that the Nepalese government does not condone or encourage discrimination on the basis of ethnicity.

6. The application for an order of review asserts an error of law in terms of s 476(1)(e) of the Migration Act 1958 (Cth). The applicant claims that RRT concluded that he was a Nepalese citizen while having documentary proof of his being Tibetan. The application does not make sense nor does it disclose any matter which is capable of enlivening s 476(1)(e). In any event, the applicant stated that he was a Nepalese citizen in his application for a protection visa. He travelled to Australia on a Nepalese passport. The applicant’s application for a Protection Visa states (at Relevant Documents 6) “My father was a citizen of Nepal and so am I”. At Relevant Document 60, the applicant's representative described the applicant as a "citizen of Nepal".

7. For these reasons, as I have indicated, a consideration of the papers indicates that the application is hopeless and in those circumstances I accede to the respondent's application to dismiss the proceedings under Federal Court Rule 32(2)(c) and order that the applicant pay the respondent's costs of the proceedings.  I know it may be an exercise in futility, but I should direct that the respondent give notice to the applicant at his address for service of the decision which has been reached this morning and the reasons for the making of that decision.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:             28 April 2000

No appearance by the applicant
Counsel for the Respondent:	Ms S McNaughton
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 April 2000
Date of Judgment:	5 April 2000