NAIV v Minister for Immigration
[2003] FMCA 356
•25 August 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAIV & ORS v MINISTER FOR IMMIGRATION | [2003] FMCA 356 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – applicants a mother and two children from Nepal – visa application included the father – marriage broken down – whether the RRT could and should have permitted the mother and children to take a separate visa application – no reviewable error found. |
| First Applicant: Second Applicant: | NAIV NAIW |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ386 of 2003 |
| Delivered on: | 25 August 2003 |
| Delivered at: | Sydney |
| Hearing date: | 25 August 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicants appeared in person
| Counsel for the Respondent: | Mr S Lloyd |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Pursuant to rule 11.11 of the Federal Magistrates Court Rules 2001 (Cth), and with her consent, NAIV is appointed litigation guardian of NAIW and NAIZ.
NAIV is relieved of the obligation to provide an affidavit of consent pursuant to rule 11.11(2) and the obligation to give notice under rule 11.13.
The application is dismissed.
NAIV is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ386 of 2003
| NAIV, NAIW, NAIX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 20 December 2002 and handed down on 14 January 2003. The RRT decision was to affirm a decision of the delegate of the Minister not to grant protection visas to four applicants. The four applicants were a father, a mother and their two children. They are from Nepal and made claims of persecution based on religion and political activity.
The present application I have before me was filed in the Federal Court on 7 February 2003. This application is by the mother and the two children. The father has filed a separate review application: NAIY v Minister for Immigration [2003] FMCA 359. These proceedings have been transferred from the Federal Court to this Court for hearing. The application is supported by an affidavit by the applicant mother filed on the same day as her application.
The application and supporting affidavit raise a number of legal challenges to the decision of the RRT. Those legal challenges are not particularised. Mr Lloyd, for the respondent Minister, has dealt with each of the claims set out in the application and supporting affidavit in written submissions filed on 21 August 2003. The claims that are made by the applicant mother are made essentially on her own behalf. However, she agreed to be appointed litigation guardian for the two child applicants.
I agree with Mr Lloyd's written submissions in relation to the matters raised in the application and supporting affidavit. I adopt Mr Lloyd's written submissions in relation to those matters:
This matter arises from an application made under s.39B of the Judiciary Act 1903 (Cth), seeking review of a decision of the RRT handed down on 14 January 2003, which decision refused the Applicants protection visas.
The RRT had two hearings with the applicant mother and made findings in relation to her and her children at (court book, pages 312‑314).
The applicants’ grounds are contained in the application (which in part appears to proceed as if the application were made by the applicant mother’s husband) and in an affidavit of the applicant mother.
First, it is said that the RRT did not observe mandatory procedures but none are particularised. This ground must fail.
Secondly, it is said that the RRT did not consider the prevailing situation in Nepal. However, the RRT’s reasons reveal that it did have regard to the present situation in Nepal (see, for example, court book, pages 305-306).
Thirdly, it is said that the RRT failed to address the applicant mother’s claims of being from a lower caste, in a mixed-marriage, leading to discrimination by family and society. However, the RRT did consider and make findings about these claims (court book, pages 312-313); essentially finding that the discrimination suffered was not serious enough to constitute persecution under the Convention.
Fourthly, it is said that the applicant mother was not given an opportunity to comment on information relied upon by the RRT. It is not clear what this is a reference to. The RRT’s reasons reveal that the RRT put to her critical matters (court book, pages 303-306). In any event, there is no evidence which establishes any practical unfairness, for example evidence of what might have been put to the RRT in response to this alleged information.
Fifthly, it is said that the RRT did not take into account the applicants’ change of religion. However, the RRT considered that the applicants had (and would have) religious freedom in Nepal (court book, page 312). Indeed, in part the decision was premised upon the applicant mother’s ability to gain support from the Christian community in Nepal (court book, page 313.7).
Finally, it is said that the RRT’s reasoning is flawed. This does not seem to rise higher than a claim that the RRT’s decision was wrong on the merits.
No jurisdictional error has been established.
No legal error is disclosed in relation to the consideration of the applicant's claims before the RRT. Insofar as the applicant mother disputes the decision of the RRT, her concern is primarily with the merits of the decision. However, as I explained to her, I cannot review those merits.
In her oral submissions to me, the applicant mother explained that her main concern is with the risk of persecution that she fears because of her religion. She explained to me that the situation has been made worse because her marriage to her husband has broken down. She explained to me that in these circumstances her situation and the situation of her children in Nepal would be even worse than it would otherwise be. This is because her husband would not be available as a protector. In fact the applicant mother claims that her husband has made threats against her life. She has also claimed that effective protection from the police in Nepal would not be available.
In the circumstances, the applicant mother submitted to me that she should have been permitted to make a separate protection visa application. She explained the situation to the RRT and she was given a separate hearing. The RRT made separate findings in relation to the father, the mother and the children. The RRT found that although the family might face some discrimination in Nepal, this was not so serious as to amount to persecution. The RRT found that there is religious freedom in Nepal and that the applicants would not face persecution because of their religion.
The presiding member considered whether the applicant mother might face persecution in Nepal because she is now divorced or separated. The presiding member appeared to accept that the applicant mother could face hardship in Nepal. However, the presiding member found that at least basic services were available in Nepal to single females with families. In addition, the presiding member found that the applicant mother, and indeed the children, would not face persecution because of a Convention reason. The problems that the applicant mother and her children are likely to face in Nepal arose because of the breakdown of the marriage, not for a Convention reason.
It was not possible for the RRT to agree to the applicant mother’s request that she be permitted to make a fresh application for a protection visa. The family had made a joint visa application and a decision had been made on it by the delegate. The family had made a joint review application to the RRT. The RRT had to deal with that joint application. The presiding member did the best that could be done in the circumstances. There is no legal error apparent in the presiding member's approach.
Ordinarily, a valid protection visa application having been made and determined, s.48A of the Migration Act 1958 (Cth) would prevent the applicant from making a fresh application. It is open to her to ask that the Minister use his powers to permit a fresh application to be made. However, that is beyond the scope of these proceedings.
I can find no reviewable legal error in the decision of the RRT and the proceedings before the RRT. In the circumstances, I will dismiss the application.
On the question of costs the applicant, having been wholly unsuccessful and the Minister wholly successful, Mr Lloyd has requested an order for costs and submits that this is a matter of average complexity. The Minister should receive an order for costs consistent with the general principle that costs follow the event.
The applicant mother has submitted to me that she would find it very difficult to pay an order for costs. However, that is not a reason for refraining from making a costs order. It may have a bearing on what, if any, action is taken by the Immigration Department to recover costs.
I will order that applicant NAIV pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $2,500.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 3 September 2003
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