NABM v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 393

FEDERAL COURT OF AUSTRALIA

NABM v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 393

NABM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N1684 of 2001

WILCOX J
28 MARCH 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1684 OF 2001

BETWEEN:	NABM APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	28 MARCH 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the costs of the respondent.

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	N1684 OF 2001

BETWEEN:	NABM APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	28 MARCH 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an application for review of a decision of the Refugee Review Tribunal affirming a decision of the delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, refusing to grant to the applicant a protection visa. 

2. The applicant, a citizen of Nepal, is a young woman aged some 22 years.  She claims a fear of persecution on the basis that her father, who died in 1995, was a supporter of the Panchayat system of social and political administration in Nepal.  This system was apparently abandoned by the King of Nepal in 1990.  At that time, the King allowed the formation of political parties.  This has since been the system of government in Nepal.

3. The Tribunal accepted there was animosity towards supporters of the Panchayat system, before and after the change in 1990.  There was a question, apparently, before the Tribunal as to the cause of death of the father.  The Tribunal was not satisfied his death was otherwise than from natural causes.  This seems to reflect what was said to the Tribunal by the applicant, namely that she was unable to rule out natural causes such as a heart attack. However, it is fair to add that she said the stress to which her father had been subjected was a factor in his death.

4. The applicant apparently grew up in Nepal outside Kathmandu.  She claims that her family was subjected to some harassment during that period.  At some date after the death of her father she moved to Kathmandu where she lived with her uncle and his family. 

5. The Tribunal member was not impressed by the claims made by the applicant.  He said he did not accept that she has been facing serious threats of harm, let alone for the reasons claimed by her.  He thought her evidence about living with family members in Kathmandu greatly undermined her claim about not having anyone to protect her in Nepal.

6. The Tribunal member concluded his brief statement of findings and reasons with the following paragraph: 

   “Credibility is an issue in this case, but even taking the Applicant’s claims at face value, the Tribunal does not accept that there is a real chance of her facing persecution in Nepal for reasons of imputed pro-pancha leanings, or for any other Convention-related reason.  She is not a refugee.”

7. Mr Simon Diab, solicitor for the applicant, requested me to adjourn the hearing in order to allow him time to obtain a transcript of the hearing before the Tribunal.  This was a belated request.  Although Mr Diab appeared at the directions hearing of this matter on 27 February, he made no reference at that time to a desire to obtain a transcript.  Directions were made, in the usual form, requiring that the applicant file and serve the evidence upon which she proposed to rely on or before 19 March.  No advantage was taken of that entitlement.  When I asked Mr Diab the reason why a transcript had not been sought at an earlier time, he indicated his client was still waiting to get together sufficient funds.

8. I refused the adjournment application.  It is the duty of the Court to deal with applications for review of decisions of the Tribunal expeditiously.  It is not the practice to adjourn them in order to allow applicants to assemble funds.  If this course was taken, the Court would sustain considerable difficulty in disposing of cases within a reasonable time.  Moreover, and more importantly, I do not think provision of a transcript would take the matter any further, in so far as the Court’s function is concerned.  Mr Diab told me that his purpose was to refer me to statements made, during the hearing, by his client in which she outlined the nature of the harassment she had faced in the past.  Apparently, and surprisingly, none of this material was put in the written application for a protection visa or even disclosed to the delegate.  Apparently it was put orally for the first time during the Tribunal hearing.

9. It is not the function of this Court to determine the facts.  If I were confronted with a transcript, in the way contemplated by Mr Diab, I would, in effect, be invited to form a view about whether or not the applicant’s claims should be accepted as factually correct and, if so, whether the events that had occurred were of such a nature that they ought to be regarded as persecution.  I would then, presumably, be invited to say that, having regard to the conclusion I had reached on that matter, I took a view different from that of the Tribunal in feeling that there was a real chance of the applicant facing persecution in Nepal if she were returned to that country.

10. One only has to outline the exercise envisaged by Mr Diab to realise the Court would be being invited to take over the Tribunal’s task of finding the facts.  I decline to undertake that exercise.  That would be a perversion of the scheme of the legislation.  Consequently, there is no point in an adjournment being granted to enable provision of the transcript.

11. I asked Mr Diab what further material he wished to put before the Court.  He told me he relied upon his written submission.  The written submission deals at some length with the effect of the new s 474 of the Migration Act, but one only gets to consider that matter if one finds an error of law.  There is nothing in the submission that suggests the Tribunal fell into an error of law.  The submission challenges the views of the Tribunal in respect of aspects of the factual findings but, as I have pointed out, that is not a matter for the Court.

12. The written submission includes the claim that the Tribunal fell into an error of law as to the interpretation of the Convention on Refugees, but apparently the reason for this is that the Tribunal failed to understand that the conduct suffered by the applicant amounted to persecution.  The submission does not attribute to the Tribunal any misstatement of the nature of persecution, as spelt out in the authorities interpreting the 1951 Convention, but rather that the Tribunal must have misunderstood the meaning of the word because it failed to find persecution in the present case.  This is simply a submission as to facts, dressed up in different clothing.

13. In my view, no legal error is demonstrated in this case.  Consequently, it is not necessary for me to consider the effect of the legislative amendments which took effect on 2 October last.  The application must be dismissed.

14. The order of the Court is that the application be dismissed with costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:            16 April 2002

Counsel for the Applicant:	Mr S Diab
Solicitor for the Applicant:	Simon Diab & Associates
Counsel for the Respondent:	Mr G Kennett
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	28 March 2002