NAIY v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 455

FEDERAL COURT OF AUSTRALIA

NAIY v Minister For Immigration & Multicultural & Indigenous Affairs
[2004] FCA 455

MIGRATION – “well founded fear of persecution” – seriousness of discrimination experienced is a question of fact for the Tribunal

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 applied
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 applied
Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 applied
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 referred to
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 referred to
Minister for Immigration and Multicultural and Indigenous Affairs v Kord (2002) 125 FCR 68 applied
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 77 ALJR 699 applied
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 referred to
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 referred to

NAIY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1420 of 2003

JACOBSON J
20 APRIL 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1420 of 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NAIY APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	20 APRIL 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs in the proceedings.

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	N1420 of 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NAIY APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	JACOBSON J
DATE:	20 APRIL 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. This is an appeal from a judgment of a Federal Magistrate dismissing an application for review of a decision of the Refugee Review Tribunal (“the RRT”).  The judgment of the learned Magistrate was given ex tempore on 25 August 2003.  The decision of the RRT, which was handed down on 14 January 2003, affirmed a decision of a delegate of the Minister made on 2 April 1998 refusing to grant the appellant a protection visa.

2. The appellant is a Nepalese male.  He arrived in Australia on 22 July 1996 with his wife and two children.  On 25 November 1996 he applied for a protection visa.  He included his wife and children as applicants but on the same day he and his wife also filed separate applications making their own claims for refugee status.

3. The RRT dealt with the application as one which was brought by the husband, the wife and the children.  However, in October 2000, shortly before the first of two oral hearings, the RRT was notified that the husband and wife had separated.  The RRT was also notified at that time that the husband had inflicted domestic violence on his wife.  The RRT therefore heard their evidence separately and made separate findings in relation to each of the husband, the wife and the children which were recorded in one joint set of reasons.

4. The husband’s claims in the RRT were described by the learned Magistrate as “diverse”.  He claimed to have a well-founded fear of persecution by reason of his religion, his caste, his political activities and by reason of a fear of the Maoist insurgency in Nepal.

5. The wife’s claims were similar but she also claimed, apparently as a member of a particular social group, to fear domestic violence from her husband against which the State would not provide protection.

6. All of the claims were unsuccessful in the RRT and the wife brought a separate application for review that was heard by the same Magistrate who heard the husband’s application.  Her application seems to have been brought on her own behalf and on behalf of the children.  That application for judicial review was unsuccessful.  She has appealed against the Magistrate’s orders.  I heard the appeal and will deliver a separate judgment on it.

   The Background Facts

7. The appellant was born in 1955.  He and his wife were married in 1985.  He is a civil engineer who worked for the Nepal Food Corporation for 17 years from 1979 to the time of his departure for Australia in 1996.

8. In his statement dated 29 January 1997 in support of his application for a protection visa, the appellant said that he and his wife were of a different race, religion and caste.  He said that he was from the Baisya race, the Tamang caste and that his religion was Buddhist.  He said that his wife was from the Chhetri race, the Thapa caste and that her religion was Hindu.

9. The appellant said in the statement that he and his wife and children were not accepted in Nepalese society because of these differences and that they suffered discrimination.

10. He also said that it was hard to survive in Nepal as an intercaste family and that they therefore made a decision to change to Christianity as a religion common to both husband and wife.  However, he said that this was prohibited by law in Nepal.

11. In a letter dated 27 April 2000 (which was apparently not received by the RRT until 3 October 2000) the applicant notified the RRT that he had ceased to practice Christianity and had returned to the Buddhist faith.  I will deal with this in more detail in the wife’s appeal.

12. The first hearing before the RRT was held on 5 October 2000.  By letter dated 9 October 2000 the appellant informed the RRT that some of his answers were not accurately translated into English.  The RRT therefore appointed a new hearing date on 26 October 2000.  The same procedure was followed at this hearing, that is to say, the husband and the wife were interviewed separately.

13. At the hearing the appellant claimed to be a member of the Nepali Congress Party (“NCP”) and that he feared persecution at the hands of Maoist insurgents who were targeting members of the NCP.  This claim was not included in the statement filed in support of his application for a protection visa.

    The Decision of the RRT

14. The RRT dismissed the appellant’s claim to have a fear of persecution on the ground of the discrimination suffered by him as a consequence of his mixed caste marriage.

15. The RRT referred to the fact that the applicant owned property in Kathmandu, albeit in his wife and children’s names, that he held a job in Kathmandu for a lengthy period, that he had been promoted in his job and that his work had been recognised by his superiors.  The RRT noted that the applicant was able to send his children to private school in Nepal and that the appellant was free to practise Buddhism.

16. The RRT concluded on this ground as follows:-

    “When I weigh the discrimination he claims to suffer together with the advantages he has in Nepal I find that the discrimination is not of such gravity as to amount to persecution.

    Furthermore the state does not condone or support discrimination on the basis of caste.”

17. The RRT referred to country information about the Maoist insurgency.  The information disclosed that a “People’s War” was launched in 1996.  The country information stated that although the insurgents’ activities were focused on the police, they also killed, injured and kidnapped civilians.  There was information that NCP members had been targeted.

18. The RRT found that the appellant was a “regular member” of the NCP and held no office in it.  The RRT therefore found that the appellant did not have a significant political profile.

19. The RRT’s conclusion on this claim was as follows:-

    “He has provided evidence of Maoist activities in Kathmandu.  Where people have been targeted they have been government authorities or office bearers of the party.

    [The applicant’s] profile is not in these categories and as an ordinary member of the Nepali Congress Party I find he does not face a ‘real chance’ of harm amounting to persecution for reasons of his political opinion.”

20. The RRT observed that, like others in the tragic situation in Nepal, the appellant could become the victim of a random attack.  However, this was not a Convention ground.

21. Nor did the RRT regard the collapse of the appellant’s marriage as raising any Convention ground of persecution.

22. As an alternative ground for dismissing the application, the RRT found that under the terms of a Peace Agreement made between the governments of India and Nepal, the appellant had the right to live in India “without fear of refoulement”.

23. The Agreement is known as the Treaty of “Peace and Friendship” between the Government of India and the Government of Nepal.  It was made in 1950.  Article 7 of the Treaty provides:-

    “The Governments of India and Nepal agree to grant, on a reciprocal basis, to the nationals of one country in the territories of the other the same privileges in the matter of residence, ownership of property, participation in trade and commerce, movement that privileges of a similar nature.”

24. The RRT raised the question of the Treaty with the appellant in a letter dated 28 November 2002, that is, about three weeks before it made its decision, but about 2 years after the oral hearing.  The decision was made on 20 December 2002 but it was not handed down until 14 January 2003.  In the letter the RRT said:-

    “Following the hearing the Tribunal found information to the effect that India and Nepal have an agreement which is current and which allows Nepalese citizens to enter India and to reside there and to remain without being forced back to Nepal.”

25. In its reasons for decision the RRT referred to the appellant’s response to the letter in which he accepted that he had a right to live in India but argued that he was entitled only to menial employment in that country.

26. Nevertheless, the RRT found that the rights granted by the Treaty enabled the appellant to avoid any risk of harm from Maoist actions.

    The decision of the Federal Magistrate

27. The Magistrate enumerated at [3] of his judgment the six grounds of review raised by the appellant in his application.

28. The first was that the decision-maker “did not look seriously” at the statements made by the appellant in support of his application for a protection visa.

29. The second was that the decision-maker ignored the information which the appellant submitted as proof of his claim.

30. The third was that the RRT accepted unverified country information without giving him an opportunity to comment on it.

31. The fourth was that the RRT did not base its decision correctly on the Convention definition of a refugee.

32. The fifth was that there was no consideration of the current situation in Nepal. 

33. The sixth was bias.

34. The learned Magistrate accepted at [4] the submissions of counsel for the Minister which were that there was no substance in any of the grounds of review namely, denial of procedural fairness, failure to consider the merits, failure to consider the prevailing situation in Nepal, error of law, bad faith and bias.

35. The learned Magistrate also addressed at [5] – [21] the submissions put by the appellant.  It is unnecessary to repeat what was set out in the judgment.  I have referred to the content to the extent necessary under the sub-headings below.

36. The Federal Magistrate found, at [22] that the RRT had dealt adequately with each of the appellant’s claims, that it had done so fairly and that the RRT did not commit jurisdictional error.

    The Notice of Appeal and Submissions

37. In the notice of appeal filed on 15 September 2003, three unparticularised grounds were stated.  The first was that the Magistrate erred in failing to find a denial of natural justice.  The second was that he erred in failing to find any legal error on the part of the RRT.  The third was that the Magistrate did not “legally focus” on the appellant’s points.

38. The appellant filed lengthy and detailed written submissions.  He also addressed me orally.  I will deal with his submissions under the sub-headings set out below.

    Failure to grant adjournment

39. The appellant submitted that the Magistrate wrongly failed to grant an adjournment because the appellant was feeling unwell.

40. The transcript records that the appellant tendered a medical certificate which related to his fitness to work and that the Magistrate contacted the doctor by phone.  The transcript also records that the Magistrate said:

    “He told me he didn’t know anything about court proceedings, and he was only intending to issue an ordinary work certificate.  He also ventured the opinion that you should be all right to continue in court.  Now, I haven’t taken any evidence from the doctor, but based on what the doctor told me out of court, I’ve formed the view that you can continue.”

41. No error is disclosed in this.  Nor is there anything in the transcript to suggest that the appellant suffered any prejudice.  In my view the submission cannot be sustained.

    Failure to review the delegate’s decision 

42. The application before the Magistrate was for a review of the decision of the RRT, not the decision of the delegate.  Accordingly, this submission must be rejected.

    Failure to accord natural justice by stopping the appellant from making oral submissions

43. The transcript reveals that the appellant was not prevented from putting his arguments.  This submission is also rejected.

    Failure to put critical matters arising from country information

44. The Magistrate found that the RRT’s reasons for decision revealed that it had put all critical matters to the appellant.  No error has been demonstrated in the finding.  Indeed, in my view it is correct.

45. As to the issue of relocation to India, this was clearly put to the appellant in the letter of 28 November 2002.  He submitted to me that the Treaty was not current but there is nothing to support that submission.  Nor was that point made by the appellant’s migration agents in their letter responding to the RRT’s communication of 28 November 2002.

    Failure to apply Convention definition of “refugee”

46. This submission cannot be accepted.  The RRT considered whether the discrimination which the appellant suffered amounted to persecution under the Convention.  The finding made by the RRT that the discrimination was not sufficiently serious to amount to persecution was open to it; see Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (“Chan”), Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 570-572.

47. It is unnecessary to trace the discussion of the meaning of the term “persecution” in the authorities.  As a number of Justices of the High Court of Australia observed in Chan, the terms “persecution” and “persecuted” are not defined in the Convention or the Protocol; see at 388 (Mason CJ), 399 (Dawson J), 429 (McHugh J).  And as McHugh J said in Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 (“Ibrahim”) at [65], framing an exhaustive definition is probably impossible. Nevertheless, the basic elements were conveniently summarised by McHugh J at [65] in Ibrahim.  What is involved is unjustifiable and discriminatory conduct which is so oppressive that the person threatened cannot be expected to tolerate it.

48. As Marshall and Dowsett JJ (with whom Heerey J was in general agreement) said in Minister for Immigration and Multicultural and Indigenous Affairs v Kord (2002) 125 FCR 68 (“Kord”) at [36], it is important to distinguish between past acts of discrimination and acts which it is feared will occur in the future. But the seriousness of the conduct will be a relevant consideration in determining whether the person holds the requisite fear and whether the fear is well-founded; per Marshall and Dowsett JJ at [36].

49. However, where the RRT has engaged in a qualitative assessment of the harm which the respondent has suffered, and has done so on the implicit assumption that there is no objectively well-founded fear that the person in question would suffer harm of a greater magnitude if he or she were to return to the country of citizenship, the qualitative assessment is a question of fact; see Kord at [3] (Heerey J).

50. That is precisely what occurred in the present case.  The assessment of the degree of seriousness was one of fact.  There is nothing in the RRT’s reasons to suggest that it failed to apply the principles stated by the High Court in Chan, Ibrahim or other authorities.  It follows in my view that no error is disclosed in the RRT’s reasons.

51. The appellant submitted that the RRT did not consider the prevailing situation in Nepal in dealing with the country information before it.  The RRT’s reasons show that it did consider the situation.  The learned Magistrate correctly rejected a submission that it did not. 

    Alleged failure to consider missing pages from appellant’s statement; failure to consider some material submitted by the appellant

52. The Magistrate dealt with the contention of the missing pages at [14] to [18].  He seems to have considered that it was possible that pages were missing.  However, he found at [17] that:

    “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.”

53. The Magistrate also found at [18] that no practical unfairness had been shown.

54. There was no error in any of these findings.  Even if it were assumed that the RRT failed to consider the material, which has not been established, the appellant has not demonstrated how this could have produced a different result; Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 77 ALJR 699 at [37] – [38].

55. The appellant submitted that the RRT had failed to consider some of the extensive written information supplied by the appellant.  He gave seven examples of the material which he said had not been considered.  These included material about the district from which he had come and the statement that he settled in Kathmandu by force because he had no choice.

56. However, there was no error on the RRT’s part in failing to refer to any of the matters to which  the appellant pointed.  Some of them, such as attacks by the Maoists on members of the NCP, were referred to.  As to the others, all that the RRT was obliged to do under s 430 of the Act was to set out its findings on those questions of fact which it considered to be material; see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68] – [69]. There was nothing which revealed jurisdictional error in the failure to refer to any of the material to which the appellant pointed.

    Failure to give adequate time to present the case

57. There is nothing in the transcript of the hearing before the Federal Magistrate to suggest that the appellant did not have adequate time to present his case.  Indeed, the position seems to me to be that he was given a full opportunity.

58. It is true that the Magistrate said he did not listen to the whole of the tape of the RRT hearing.  But the transcript shows that he permitted the appellant to play those parts of the material he wanted to refer to.  Nothing further was required.

59. The transcript also indicates that the appellant complained about being given insufficient time to put his oral submissions to the RRT.  However, I can see nothing in what was put to the Magistrate to show that the appellant was denied an adequate opportunity in the RRT.

60. The effect of his complaint to the Magistrate about this issue was that the translation was not satisfactory.  The Magistrate dealt with this at [12] by finding that whatever problems in interpretation were experienced, they were effectively dealt with by the RRT, (i.e. by holding a second hearing), and the proceedings were in that respect fair.  There is no error in this approach.

    Bias

61. This is a serious allegation.  There is nothing in the RRT’s reasons, the transcript of the hearing before the Federal Magistrate or in the Magistrate’s reasons to suggest pre-judgment either by the RRT or the Magistrate; see Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; see also SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [36] – [38] (von Doussa J).

    Political persecution

1. The Federal Magistrate described the appellant’s claims of political persecution as “secondary” to his other claims at [9]. The appellant’s complaint before me seems to be that this claim was not secondary to his claims of caste discrimination and religious persecution.

2. But all that was required of the RRT was that it deal with the claim.  It did so by finding that the appellant did not have a sufficient political profile to have a well-founded fear of persecution at the hands of the Maoists.  No error is disclosed.

   Failure to deal with political claim and to have regard to current situation

3. As I have said above, the RRT dealt with the political claim.  However, the appellant’s written submission to me was to the effect that he fears persecution from the Maoists and the present government of Nepal.

4. The last mentioned claim relates to the current situation in Nepal after the murder of the King.  However, it was not put to the RRT.  Accordingly, the RRT could not deal with the claim and it was not bound to consider a claim not put to it; see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 at [31].

   Complaint about interpreter

5. The RRT held another hearing on 26 October 2000 and I have dealt with this in [12] and [60] above.

   Failure to have regard to various matters

6. The appellant submitted that he had put before the RRT articles which showed that the Maoists attacked anyone who did not support them regardless of whether they were of high political profile.

7. But this is no more than an attack on the RRT’s findings of fact.  It does not demonstrate jurisdictional error. Moreover, the appellant’s submissions fail to take into account the need to establish the necessary link with the grounds stated in the Convention ie that the fear must be for reason of one of the specified grounds.

   The “Belgium Report” on the safeness of Kathmandu

8. The appellant submitted that the Belgium Report was not reliable.  He put 10 bullet point reasons as to why this was so.

9. The RRT specifically directed the appellant’s attention to the report in its letter of 28 November 2002 in which it said that the Government of Belgium advised that Kathmandu was considered a safe city.  The appellant responded to the letter.  The RRT was not required to furnish the appellant with the whole of the report.  It provided him with the substance of the report and gave him an opportunity to comment on it.  Nothing further was required.  Even if the RRT was in error in accepting the contents of the Report (which has not been established) any error was one of fact and does not give rise to judicial review.

   Conclusion and Orders

10. The learned Magistrate correctly found that there was no jurisdictional error in the decision of the RRT.

11. The appeal must be dismissed with costs.

I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson

Associate:

Date:               20 April 2004

Applicant was self-represented.
Counsel for the Respondent:	R Pepper
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	19 February 2004 and 12 March 2004
Date of Judgment:	20 April 2004