NAIY v Minister for Immigration
[2003] FMCA 359
•25 August 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAIY v MINISTER FOR IMMIGRATION | [2003] FMCA 359 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Nepal – no reviewable error found. |
NAIV & Ors v Minister for Immigration [2003] FMCA 356
| Applicant: | NAIY |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ447 of 2003 |
| Delivered on: | 25 August 2003 |
| Delivered at: | Sydney |
| Hearing date: | 25 August 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr S Lloyd |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant 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 |
SZ447 of 2003
| NAIY |
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 affirmed a decision of a delegate of the Minister not to grant to the applicant and other members of his family protection visas. I have earlier today dealt with a judicial review application by other members of the applicant's family: NAIV & Ors v Minister for Immigration [2003] FMCA 356. The present application I have before me is by the applicant father alone.
The applicant comes from Nepal and arrived in Australia on 22 July 1996. On 25 November 1996 he and other members of his family lodged a protection visa application. A delegate rejected the application on 2 April 1998. A review application was made to the RRT on 16 April 1998. The applicant's claims were quite diverse. The applicant claimed to fear persecution in Nepal by reason of his religion, his caste, his political activities in Nepal, and, also as transpired at the hearing before the RRT, because of a fear of the Maoist insurgency in Nepal.
The judicial review application filed on 30 May 2003 sets out six grounds of review. These are, first, that the decision-maker did not look seriously at the applicant's statement, which I take to mean his statements in support of his visa application; secondly, that the decision-
maker ignored the information which the applicant submitted as proof of his claim; thirdly, that the information used to make the decision in his case is not verified as true or untrue, but just accepted because it is against the applicant's claim and there was no opportunity for the applicant to comment on the information; fourthly, the reason given for the decision is also “not as per” the Convention's definition, which I take to mean that the RRT did not base its decision correctly on the Convention definition of a refugee; fifthly, that there was no consideration of the present situation prevailing in Nepal; lastly, that the RRT exercised its power improperly and acted "biasely", which I take to mean in a biased fashion.
Mr Lloyd, for the Minister, has dealt generally with these grounds for review in written submissions filed on 21 August 2003. I accept, generally, what Mr Lloyd submits in paragraphs 4, 5, 6 and 7 of those written submissions in relation to the amended application:
First, it is said that the applicant was denied procedural fairness and, in particular, that he 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 him critical matters (court book, pages 299-303). The court book reveals that the question of relocation to India, which arose after the hearings, was expressly put to him and he did deal with it (court book, page 253ff). 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.
Secondly, it is said that the RRT failed to take into account the merits of the applicant’s case. This is probably to be understood with the statements in the amended affidavit. The [applicant] contends that the RRT did address the merits of the applicant’s case. The answers reached by the RRT are not, however, subject to judicial review.
Thirdly, 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 300-301).
Fourthly, there are a number of claims which have no meaningful particulars, such as the claim to error of law; and the claims of improper purpose, bad faith and bias. In the absence of any basis for these claims, they must be rejected.
No particulars of the grounds of review were advanced prior to the hearing of this matter. There is no substance to the claim that the RRT decision is not properly based on the Refugee Convention definition of who is a refugee. It is apparent from the decision of the presiding member that the correct approach was taken to that issue. There was also obviously extensive consideration by the presiding member of the present situation prevailing in Nepal. There is no evidence of actual bias, although a related issue of apprehended bias was raised by the applicant at the hearing before me today.
It is apparent from the court book that the presiding member considered extensive written information presented by the applicant and also gave the applicant a lengthy opportunity to present oral submissions. The applicant contended at the hearing before me that the RRT pre-judged his claim, which I take to be an allegation of apprehended bias. However, the record of the decision of the RRT does not support that claim. The presiding member goes through with some care the claims made by the applicant and considers each of those claims. There is nothing on the face of the record of the RRT decision that indicates pre-judgment. Neither has the applicant been able to point to anything else to support that claim.
The applicant also contended that the presiding member did not deal properly with his claims of political discrimination. He took me to page 311 of the court book where the presiding member stated at the RRT hearing:
He [the applicant] made no mention of this [his membership of the Nepali Congress Party] causing him any problems.
The applicant referred me to sections of the tape recording of the hearing before the RRT, which were played in court, which he said indicated that he indeed had raised political problems. The sections played confirmed that the applicant was referring at the hearing to problems he faced due to a risk of harm from the Maoist insurgency in Nepal. In later argument the applicant agreed that the issue he raised at the hearing did concern the risk of harm posed by the Maoists.
It is apparent from a reading of what the presiding member says (court book, page 311) that the applicant did indeed raise his concern about a risk of harm at the hands of the Maoists. It appears that what the presiding member meant in stating that the applicant had not made any mention of problems arising due to his membership of the Nepali Congress Party was that he had not raised any other problems. The claims of political persecution made by the applicant were secondary to his other claims set out in his documents. His other claims fixed upon caste discrimination and religious persecution concerns.
At the hearing before me the applicant stated that he was a member of the governing party in Nepal and a supporter of democratic change and that he did not fear harm at the hands of the Nepalese Government. That is consistent with the matters he put before the RRT. He had referred in documents put before the RRT to his activities in support of democratic activists in Bhutan but it was not apparent from those documents that any particular risk of harm was faced by him in Nepal.
The presiding member did not appear to deal specifically with the applicant's Bhutanese activities and it may have been that which partly led the presiding member to make the statement I have referred to (court book, page 311). In any event, as transpired before the hearing before me, the applicant's real concern in relation to his risk of political persecution was the risk that he feels he faces from the Maoist insurgency in Nepal. That was dealt with by the presiding member.
I do not see any jurisdictional error having been committed by the presiding member in relation to the applicant's claims of political persecution.
The applicant asserted that the hearing before the RRT was unfair. He stated that there were interpretation problems and that the presiding member did not give him a sufficient opportunity to put his claims orally. However, the issue of interpretation difficulties was dealt with by the presiding member (court book, page 307). Because the applicant had asserted problems in interpretation the applicant was given a second day's hearing with a different interpreter. I find that whatever problems in interpretation were experienced by the applicant, they were effectively dealt with by the presiding member and the proceedings were in that respect fair.
The applicant played to me short excerpts from the tape recording of the hearing which he thought demonstrated an approach by the presiding member which was unfair. One of those excerpts appeared to relate to the presiding member dealing with argument between the applicant and his spouse. I heard nothing which persuaded me that the presiding member had failed to give the applicant a fair hearing. I find that the hearing before the RRT was procedurally fair.
The applicant took me to pages 173 to 175 of the court book and pointed out to me that it appears that three pages are missing from a document that was sent to the RRT by his migration agent. The pages that appear on pages 173 to 175 appear to be three pages of a six-page document. The balance does not appear in the court book. Mr Lloyd referred me to a letter written by the migration agents on 9 June 1998 in which the migration agents draw attention to the possibility that part of the applicant's statement may be missing from the RRT document record. This letter appears at page 211 of the court book.
The applicant told me that he did not become aware of this problem until he saw the court book. He does not have a copy of the pages which appear to be missing from the statement and he does not have a recollection of precisely what was on them. He thinks that they probably related to his claims of political persecution. It does not appear that there was any reply from the RRT to the applicant's migration agents. It appears that two years passed before the next communication from the RRT.
Hypothetically, if the RRT did not give consideration to the full statement of claims made by the applicant, the RRT may have overlooked a relevant consideration. It would be a jurisdictional error for the RRT to fail to consider all claims to a protection visa made by the applicant. However, in the absence of evidence of what was missing from the applicant's statement, I am not led to that conclusion.
The document that does appear in the court book sets out the applicant's claims in response to the DIMIA decision record. The applicant provided considerable further documentation relating to each element of his claims. Whatever may have been missing from the statement in response to the DIMIA decision record, it does not appear to me that the RRT was left in the dark about what the applicant was saying in support of his application for a protection visa.
In those circumstances, while there may have been material missing from the applicant's statement put before the RRT, there was no practical unfairness because the applicant, both in documentary form and orally before the RRT, put before the RRT everything that he wanted the RRT to consider.
The RRT also dealt with the risk that the applicant faced at the hands of the Maoist insurgents and, it appears, initially took the view that the applicant would be safe in Kathmandu. This view was based upon a report prepared for the Belgian government. The applicant was invited to comment upon this and did so.
The applicant presented country information to the RRT that established that there was a risk of violence in Kathmandu by the Maoist insurgents. That risk, according to the country information, was two-fold: first, the risk of individuals being randomly killed or injured as a result of Maoist terrorist activity; and, secondly, a risk of individuals coming to harm as a result of targeted killings.
The RRT came to the view that to the extent that the applicant might suffer harm as a result of Maoist terrorist activity, the risk of harm he faced was the same risk that would be faced by anybody. The RRT did not consider that the applicant had a sufficiently high profile to cause the Maoists to target him specifically. The applicant contests this on the basis that he is an opponent of the Maoists and any opponent of the Maoists is at particular risk. However, that is a challenge to the merits of the RRT decision and does not establish any jurisdictional error.
In my view, the RRT has dealt adequately with each of the claims that were made by the applicant and has done so fairly. I find that no jurisdictional error has been committed by the RRT in this matter.
I will dismiss the application.
On the question of costs, Mr Lloyd has sought an order for costs on the basis that the applicant has been wholly unsuccessful and the Minister successful. The Minister should receive an order for costs consistent with the principle that costs follow the event. Mr Lloyd tells me that the costs actually incurred on a solicitor and client basis in this matter are of the order of $3,600. The applicant has reminded me that the court book in this matter is common to not only these proceedings but also the proceedings instituted by his former wife and his children. In the circumstances, preparation costs for the Minister have been reduced. On the other hand, the applicant has raised different legal issues than those that were raised in the other proceedings. It was necessary for the Minister's lawyers to deal separately with the legal issues raised by the applicant. In my view, an award of costs fixed in the sum of $2,500 would be appropriate in this matter. I will order that the application be dismissed and that the applicant 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 twenty-four (24) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 5 September 2003
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