Rijal v MIMA

[1999] FCA 1512

FEDERAL COURT OF AUSTRALIA

Rijal v MIMA [1999] FCA 1512

MIGRATION – Migration Act 1958 (Cth) – application for review of a decision of the Refugee Review Tribunal – whether any ground of review identified – no question of principle

Migration Act 1958 (Cth)

PRAWESH RIJAL v  MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and UMESH RIJAL v  MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 697 of 1999
N 698 of 1999

BRANSON J
SYDNEY
18 OCTOBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 697 of 1999

BETWEEN:	PRAWESH RIJAL Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	BRANSON J
DATE OF ORDER:	18 OCTOBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The decision of the Refugee Review Tribunal be affirmed.

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	N 698 of 1999

BETWEEN:	UMESH RIJAL Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	BRANSON J
DATE OF ORDER:	18 OCTOBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.          The decision of the Refugee Review Tribunal be affirmed.

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	N697 of 1999 N698 of 1999

BETWEEN:	PRAWESH RIJAL Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
BETWEEN:	UMESH RIJAL Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	BRANSON J
DATE:	18 OCTOBER 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. The applicants are brothers and citizens of Nepal.  They arrived in Australia on 16 January 1997 on student visas which permitted them to remain in Australia until February 1999.

2. By a letter dated 13 February 1999 the applicants’ father wrote to the respondent indicating that he wished his sons to remain in Australia and apply for protection under the United Nations Convention on Refugees.  The letter asserts that:

   “I arranged my sons to be away from Nepal due to threat to their lives around 2 years ago while they were studying at the University.  I had to finance them to come to Australia due to extremely dangerous political situation in Nepal and due to my involvement in the Nepalese politics.

   They were still students and they were unknown to the political situation when they were back hare [sic] in Nepal.  I knew the gravity of the problems and acted on my own to send them overseas to take further studies.”

3. The applicant’s father refers in his letter to his involvement since his college days with the Nepalese Communist Party and his more recent joining of the Nepalese Congress Party.  The letter appears to suggest that its author is in fear of his life, and fearful for the lives of his family, by reason of the terrorist activities of the Nepalese Communist Party.

4. Each of the applicants sought protection visas on 21 May 1999 using the prescribed form.  In neither case did the applicant complete those sections of the form that seek information as to why he left his home country, or what he feared should he return home.  It appears that the father’s letter may have been annexed to at least one of the applications.

5. In the case of each applicant, the delegate of the Minister was unable to be satisfied that there was a real chance that he would face convention-based persecution in Nepal should he return.

6. Each of the applicants sought review of the decision of the delegate of the Minister.  In neither case did the applicant complete that section of the application for review which seeks information as to why the applicant disagreed with the Department’s decision.  In the space on the form designed for that information, the applicants wrote, “will be sent later”.  Nothing in the material before me suggests that any relevant material was later provided by the applicants.

7. The Refugee Review Tribunal, in each case, affirmed the decision not to grant the applicant a protection visa.  The reasons of the Tribunal include the following passage:

   “At their joint hearing, the Tribunal asked each applicant separately a series of identical questions.  Neither claimed having been persecuted in the past because of their father’s alleged political associations.  Each claimed not to have been aware of their father’s political activities whilst in Nepal, and neither had felt endangered in any way there.  Both denied any interest in politics or any political affiliation in Nepal or in Australia.  They had both been studying in Kathmandu after leaving school and before leaving for Australia, during which time they had not encountered any difficulties arising from their father’s claimed political affiliations.  The younger brother Prawesh had returned to Nepal for a month in October 1998 for his mother’s funeral ceremonies which he and his father had conducted in Kathmandu.  His father had not discussed politics at that time, nor did he experience any untoward incidents.

   Neither applicant articulated any fear that their father’s alleged former membership of the Community party could result in their being persecuted on return to Nepal.

   The Tribunal put to the applicants the independent evidence that the Congress Party, to which their father claimed to belong, had won a convincing victory in the May general elections.  It considered that even if the applicants were in danger of persecution for reason of their father’s earlier Communist affiliation, they would be able to obtain the protection of the state.  However, it did not consider that they would be persecuted for a Convention reason on return to Nepal, now or in the future.

   The applicants stated that their father had told them not to return because they would be in danger.  Prawesh said that because their father was in danger, all the family would suffer.”

8. The Tribunal went on to note news reports that in the May 1999 general elections in Nepal, the “… centralist Nepali Congress emerged a clear winner, leaving its communist rival far behind ….”  It observed that the applicants’ father was, for this reason, now a member of Nepal’s ruling party.  It further noted independent evidence that the Nepalese Government was taking measures to counteract Maoist terrorism and concluded that a degree of protection against such terrorism would appear to be guaranteed by the State.

9. The Tribunal concluded:

   “Having considered the evidence as a whole, the Tribunal is not satisfied that the applicants are persons to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.  Therefore the applicants do not satisfy the criterion set out in s.36(2) of the Act for protection visas.”

10. Each of the applicants has separately applied to this Court for review of the decision of the Tribunal.  In neither case does the application include grounds for the application beyond the words, in one case, “Decision was wrong with error of law.  Details will sent shortly”.  And in the other, “Full Statement will be provided”.  These statements were not amplified either within the time allowed by the Act for the bringing of an application for review, or at all.

11. Each of the applicants has today sought to have his hearing adjourned to allow him to take further steps to obtain legal aid.  Earlier applications to the Legal Aid Commission and to the Law Society of New South Wales, pro bono assistance schemes, have been refused.  Each of the applicants is in custody.  Each says that he does not have money to pay for legal advice.  I am satisfied that no useful purpose would be served by adjourning these proceedings to allow the applicants to make further endeavours to obtain legal assistance.  I am satisfied that these steps would be unsuccessful.  For that reason I have refused the adjournment applications.

12. I have today asked each of the applicants what it is about the decision of the Tribunal or the procedure adopted by the Tribunal in reviewing the delegate’s decision on his application which causes him concern.  Neither of the applicants has been able to identify any matter.  One of the applicants did suggest that there may be correspondence which was received by the Tribunal that might have a relevance to his application, but he could identify no reason for thinking that any such correspondence does, in fact, exist.  I see no reason to think that it does.

13. I am inclined to doubt that either of the applicants has properly invoked the jurisdiction of this Court to review the decision of the Tribunal (s 478 of the Migration Act 1958 “the Act”).  However, no notice of objection to competency has been filed in either case (Order 54B Rule 3 of the Federal Court Rules), nor has the Court been moved for summary dismissal of the application (Order 20 rule 2 and 54B Rules 5 and 6).

14. I have, therefore, considered carefully the material placed before me and the submissions placed before me on behalf of the respondent.  Having done so, I am not in either case satisfied that any ground of review identified in s 476(1) of the Act can be established.

15. The decision of the Tribunal will, in each case, be affirmed.  There will be orders in each case that the applicant pay the costs of the respondent.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:  18 October 1999

The applicants appeared in person with the assistance of	Mr S. Pradhan (Interpreter)
Counsel for the Respondent:	Mr B. Skinner
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	18 October 1999
Date of Judgment:	18 October 1999