SZAQD v Minister for Immigration - [2004] FMCA 1115

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAQD v Minister for Immigration

[2004] FMCA 1115

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Applicant:

SZAQD

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ869 of 2003

Delivered on:

4 May 2004

Delivered at:

Sydney

Hearing date:

4 May 2004

Judgment of:

Barnes FM

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr J. Kennett

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

That the application be dismissed.
That the applicant pay the costs of the respondent fixed in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ869 of 2003

SZAQD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 5 March 1999 affirming a decision of a delegate of the respondent to refuse to grant the applicant a protection visa.
The applicant is a national of Nepal who arrived in Australia on

13 September 1996
and applied for a protection visa on 19 September 1996. The application was rejected on 22 May 1997. He sought review by the Tribunal on 17 June 1997.
The applicant claimed that he had married a woman of a different caste to himself, that their families disapproved of the marriage, that he and his wife were victims of discrimination and would continue to be ostracised if they returned to their home town or village. The Tribunal accepted this aspect of the applicant’s claims, but did not accept further claims that his neighbours would attempt to kill the applicant's wife or that local government officials would imprison them. It based this conclusion on material obtained from the Australian Embassy/High Commission, the essential aspects of which had been sent to the applicant and his adviser for comment prior to the hearing.
The Tribunal was not satisfied that the applicant's claims established a well-founded fear of persecution for a Convention reason, finding that family and social ostracism the applicant and his wife might be subject to in their village did not of itself amount to persecution in the Convention sense.
The Tribunal also considered the possibility that the applicant and his wife might move to Kathmandu and accepted that the couple might experience difficulties, including lack of familial support and some social discrimination from people opposed to inter-caste marriage in Kathmandu. However, on the basis of the independent information it concluded that such harm being essentially private in nature it would not amount to persecution within the scope of the Refugee Convention and that difficulties would not be experienced from the authorities.

The Tribunal concluded that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention.
The applicant sought review in this Court by an application filed on 20 May 2003. In the application the applicant expressed disagreement with the Tribunal's use of the country information. The applicant claimed that such information was inapplicable to the life and circumstances of a particular person such as himself. In oral submissions he elaborated on this claim by arguing that the Tribunal had not considered the situation in rural areas of Nepal, but only the situation in cities. He complained that the information provided was outdated and incorrect.
The applicant repeated his factual claims and also contended that the situation in Nepal had changed a lot since his departure from the country and since the Tribunal decision. He claimed that it was not safe for him to return home.
Insofar as the applicant raises the issue of changes in Nepal since the Tribunal decision, such matters do not establish jurisdictional error, nor a basis for a review of the decision by this Court. The Court does not have a discretion on humanitarian grounds: its role is simply to consider whether there is a jurisdictional error in the Tribunal decision. A change in circumstances since the making of the Tribunal decision is not a matter that can be agitated in court and does not affect the validity of the Tribunal decision, which was made some considerable time ago.
The applicant also argued that the Tribunal did not consider the situation in rural areas of Nepal, but concentrated on the cities. First, it is clear from the Tribunal reasons for decision that the Tribunal understood the applicant’s claim that he came from a village and the claims of conduct that he had experienced in that village. This is clear from the findings and reasons, which accept that the applicant and his wife had experienced discrimination from his family and would continue to be ostracised if they returned to the village and also that they were discriminated against by people of the village.
The Tribunal also considered the applicant’s claim that local government officials would imprison them. It rejected this claim on the basis of independent information. Consistent with the Refugees Convention the Tribunal had to consider the applicant's claims in relation to Nepal as a whole and it did so in relation to the village and also the possibility of relocation which had been discussed with the applicant in the course of the hearing. The complaint that the Tribunal did not consider the rural areas of Nepal is not made out.
As to the country information relied upon, first, by letter of 8 February 1999 such information was forwarded to the applicant and his adviser with an indication that it would be discussed at the hearing.

The Tribunal reasons for decision record that the information was sent to the applicant and refer to the significant parts of that information. Included in that material and taken into account is an extract from a 1994 DFAT advice which recognised variations within Nepal based on factors such as caste, locality, education level in a particular locality, family values, local community customs and traditions in relation to the social acceptability of inter-caste marriages. The Tribunal dealt with the claims by reference to the country as a whole.
The conclusions that the Tribunal reached based on the country information relied upon and cited in the decision were open to it on the material before it. The weight to be given to particular information is a matter for the Tribunal. Insofar as the applicant seeks merits review in his disagreement with this information, such review is not available in his Court.
No jurisdictional error is apparent in the Tribunal reasoning.

The Tribunal rejected the applicant's claims at a factual level to the extent that they suggested either threats of serious harm or involvement by the state in the harm that he feared. No error is apparent in the Tribunal reasoning or conclusion that the harm which the applicant faced did not amount to persecution in the Convention sense. As no jurisdictional error is apparent the application must be dismissed.
Insofar as the applicant raises humanitarian grounds in relation to his concerns about returning to Nepal, such matters are matters for the Minister. Accordingly the application must be dismissed.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful and it is appropriate that he meet the respondent's costs. He raises the question of impecuniosity, the absence of employment or permission to work. Such matters are not reasons for not making an order for payment of costs, although they may be matters to be taken into account by the Minister in determining whether and when to seek to recover costs.
The costs sought by the respondent are at the lower end of the scale of costs that are ordered in such matters. I consider that bearing in mind the nature of this and other similar matters an amount of $3,000 is appropriate and costs should be fixed in that amount.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 19 September 2007