Sharma, Sarad Chandra v Minister for Immigration & Multicultural Affairs

[1997] FCA 653

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No NG 348 of 1996

)

GENERAL DIVISION )

BETWEEN:SARAD CHANDRA SHARMA

Applicant

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

Coram: Davies J.

Date: 27 June 1997

Place: Sydney

REASONS FOR JUDGMENT

This is an appeal from a decision of the Refugee Review Tribunal given on 26 March 1996. On an appeal it is not the function of the court to decide matters of fact for itself. The function of the court is limited to ascertaining whether there were any errors of law in the decision of the Refugee Review Tribunal ("the Tribunal"). The Migration Act 1958 (Cth) limits the court's rights and powers on an appeal to determining questions of law.

The issue before the Tribunal was itself limited. It was a decision on a second application made by the applicant, Mr Sarad Chandra Sharma. The first decision had been given on 13 February 1995. Section 416 of the Migration Act provides that, when a decision has been given on an original application and the applicant lodges a further application, the Tribunal considering the further application is not required to consider matters considered in the earlier application and may have regard to and take to be correct any decision that the Tribunal made about them. In the present case, the Tribunal applied that section and did not for itself review the whole of the matters on which Mr Sharma would have wished to rely to support his application for refugee status. The Tribunal limited its consideration to new matters which Mr Sharma put forward.

Mr Sharma's case was an unusual one. He is a citizen of Nepal and he gave evidence to the first Tribunal of problems which had arisen because of actions taken by persons who favoured the retention of a system of government which was then in force and which was called Panchayat.

Mr Sharma gave evidence to the first Tribunal that, because he and his father were supporters of a change in the system of government, both had been discriminated against. Mr Sharma gave evidence that his father had lost his occupation, that he himself had been unable to obtain paid employment in Nepal for some years, that in the late 1980's he had been intercepted on his way home and had been beaten unconscious and that he believed the beating was brought about by supporters of the Panchayat system of government. Mr Sharma said that he had then spent his time arranging to leave Nepal and was able to do so, arriving in Australia in early 1991.

The first Refugee Review Tribunal did not reject Mr Sharma's application on the grounds that he did not leave Nepal because of a well-founded fear of persecution for his political opinions. The first Tribunal rejected his application because it found that the political scene in Nepal had changed. The first Tribunal said that in 1990 the Panchayat system of government was broken down and there was established a system of multi party democracy, and therefore Mr Sharma's fear of persecution was no longer a "well-founded fear".

The first Tribunal said, inter alia:-

"The information before the Tribunal shows that under the Panchayat system there was government orchestrated suppression of political expression and activities that were contrary to the imposed orthodoxy. Since 1990, there has been little government suppression of political expression or activities. The main human rights problems since 1990 stem from police who are corrupt and poorly trained and who sometimes resort to lethal force and torture to achieve their aims.

...

The Applicant may have feared persecution when he left Nepal. Since he left, fundamental changes have taken place. A multi-party democracy has been established. The Communist Party, which he supports is now in power. The supporters of the Panchayat system are a relatively small opposition group and the Nepali Congress Party is also in opposition. The generalised persecution of political dissidents that characterised the Nepal he knew has gone."

That was a decision of fact for the first Refugee Review Tribunal. Another tribunal may have come to a different view. That is because experience shows that once there has been persecution, then there is a basis for concluding it may well happen again in the future. The cases which have come before the High Court of Australia, cases such as Chan Yee Kim v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 and Minister for Immigration & Ethnic Affairs v Guo Wei Rong & Anor (unreported, High Court of Australia, Full Court, 13 June 1997) have emphasised that it is important to give attention to what was the cause of the applicant's leaving his or her homeland and to give consideration as to whether or not the circumstances which then existed are not some indication of what may happen if the applicant returns to his or her homeland.

However, the decision was a matter for the first Refugee Review Tribunal. It rejected the claims for refugee status and the applicant did not appeal from that decision.

A second application was lodged, but once the Tribunal hearing the second application decided to apply s.416, as it was entitled to do, it was I think almost inevitable that Mr Sharma's second application would fail. That is because the matters put forward in the second application were not themselves sufficiently significant to change the decision which had already been made.

There were three principal grounds put forward in the second application. One was Mr Sharma's connection with the Communist Party, of which it appears that there were at least two branches, one named Mashal and the other was the Communist Party of Nepal. The latter for some time had been in government and, although at the time of the decision it was not in government, it was still a large party in the Nepalese Parliament.

The second ground was that Mr Sharma was now a member of the Christian faith.

The third ground put forward was that a recent change in government in Nepal, which saw the Communist Party coalition lose power to its opponents, showed that the King of Nepal was attempting to place Nepal back under absolute rule as had occurred during the former Panchayat period.

The Tribunal rejected all those matters.

In fact, Mr Sharma's political opinions and his political affiliations had been matters considered by the first Tribunal and were not new matters which were considered for the first time by the second Tribunal. In the second decision, the Tribunal thought that, as the Communist Party of Nepal was in opposition in a democratic system of government, and as the general evidence was that its supporters were not singled out by police or targeted by others by way of persecution, that the claim made on that basis lacked foundation.

The Tribunal thought that Mr Sharma's connections with Christianity were not enough to indicate that there would be persecution of him on religious grounds, should he return to Nepal. The Tribunal said that the Nepalese Constitution allows for religious freedoms.

As to the third claim, that the change in government indicated that the King was working towards restoring absolutist rule, the Tribunal thought that the actions of the King did not demonstrate any such matter. It considered that the King's actions demonstrated support for the democratic process.

Thus, it was inevitable that the second application would fail once the Tribunal decided to apply s.416 of the Migration Act as it was entitled to do.

This is certainly an unusual case. There must of course have been cases where refugee applications were rejected because of changed circumstances, but perhaps this is the first that has come to my attention and it certainly raises the point in quite a clear fashion. However, that point is one which concerns the first Refugee Review Tribunal decision, and not the decision under appeal.

It follows that, there being no error of law in the decision of the second Refugee Review Tribunal, the application must be dismissed with costs.

I certify that this and the 5 preceding pages

are a true copy of the reasons for judgment herein of

the Honourable Justice Davies.

Associate:

Date: 27 June 1997

The applicant appeared in person.

Counsel for the respondent: Ms E.A. Wilkins

Solicitor for the respondent: Australian Government Solicitor

Date of hearing: 27 June 1997

Date of judgment: 27 June 1997