SZERD v Minister for Immigration & Multicultural Affairs

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FEDERAL COURT OF AUSTRALIA

SZERD v Minister for Immigration & Multicultural Affairs [2006] FCA 560

SZERD and SZERE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and REFUGEE REVIEW TRIBUNAL

NSD 225 OF 2006

EDMONDS J
12 MAY 2006
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 225 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZERD
FIRST APPELLANT

SZERE
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE:

EDMONDS J

DATE OF ORDER:

12 MAY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs.

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

NSD 225 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZERD
FIRST APPELLANT

SZERE
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

EDMONDS J

DATE:

12 MAY 2006

PLACE:

SYDNEY

REASONS FOR JUDGMENT

EDMONDS J:

INTRODUCTION

  1. This is an appeal against a judgment of the Federal Magistrates Court (Lloyd-Jones FM) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) affirming a decision of a delegate of the first respondent (‘the Minister’) to refuse to grant protection visas to the appellants.

    BACKGROUND

  2. The appellant husband (‘the appellant’) and his wife are citizens of Nepal.  They entered Australia on 7 December 2003 on three-month visitors’ visas.  Their claims for refugee status are based on the appellant’s claims of persecution, the wife having no independent claims.  In a statement lodged with their visa applications, the appellant stated that he had served for 18 years as an officer in the Indian Army.  On his retirement in 1990, he returned to Nepal and opened a successful business.  The Maoists wanted him to use his military expertise to train their cadets, and he and his family were threatened when he ignored their requests.  The appellant and his family moved from city to city and managed to hide from the Maoists.  He approached the police, but there was little the police could do for them.  The appellant said that he and his spouse sold the business, their house and all their assets and came to Australia after he received a phone call in February 2002 from Comrade Leader Ram Bahadur Thapa (Badal).

  3. On 2 April 2004 a delegate of the Minister refused their visa applications.

    THE TRIBUNAL

  4. With the assistance of their migration agent, the appellant lodged an application for review in the Tribunal on 12 April 2004.  On 25 May 2004 the Tribunal wrote to the appellant’s migration agent enclosing information about the rights of Nepalese nationals to reside in India pursuant to a Treaty of Peace and Friendship between the two nations.  The Tribunal indicated in its letter that the appellant would be invited to comment…

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Details
Case
[2006] FCA 560
Decision Date

CaseChat Overview and Summary

The appellant, a citizen of Nepal, appealed against the Federal Magistrates Court’s dismissal of his application for judicial review of a decision by the Refugee Review Tribunal. This decision affirmed the Minister’s refusal to grant the appellant and his wife protection visas. The appellant claimed refugee status based on his own persecution in Nepal by Maoists who sought his military expertise, while his wife had no independent claims. The Tribunal found that the appellant had not been persecuted, could relocate to India, and the hardship of living there was not unreasonable. The appellant argued that the Tribunal failed to properly consider his claims and the evidence he provided.

The primary legal issue for the court was whether the Federal Magistrate erred in dismissing the appellant’s grounds for judicial review of the Tribunal’s decision. The court needed to determine if the Tribunal appropriately assessed the appellant's claims of persecution and whether it correctly applied the relevant legal standards. Additionally, the court had to consider whether the Tribunal sufficiently evaluated the evidence presented by the appellant and the country information regarding Nepal and India.

The court found that the Tribunal had considered the appellant’s claims and the evidence he provided. It was noted that the Tribunal engaged with the appellant about the evidence and the implications of the country information discussed. The court held that the Tribunal’s findings were reasonable, particularly regarding the appellant’s ability to relocate to India and the lack of evidence of persecution in that country. The court concluded that the Federal Magistrate was correct in dismissing the appeal as the appellant had not demonstrated any error in the Tribunal’s decision.

The appeal was dismissed with costs. The appellant was ordered to pay the first respondent's costs. This outcome confirmed the decisions of both the Federal Magistrates Court and the Refugee Review Tribunal, affirming the Minister's refusal to grant protection visas to the appellant and his wife.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs.

Background

Background to the litigation

This is an appeal against a judgment of the Federal Magistrates Court (Lloyd-Jones FM) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) affirming a decision of a delegate of the first respondent (‘the Minister’) to refuse to grant protection visas to the appellants.BACKGROUND The appellant husband (‘the appellant’) and his wife are citizens of Nepal. They entered Australia on 7 December 2003 on three-month visitors’ visas. Their claims for refugee status are based on the appellant’s claims of persecution, the wife having no independent claims. In a statement lodged with their visa applications, the appellant stated that he had served for 18 years as an officer in the Indian Army. On his retirement in 1990, he returned to Nepal and opened a successful business. The Maoists wanted him to use his military expertise to train their cadets, and he and his family were threatened when he ignored their requests. The appellant and his family moved from city to city and managed to hide from the Maoists. He approached the police, but there was little the police could do for them. The appellant said that he and his spouse sold the business, their house and all their assets and came to Australia after he received a phone call in February 2002 from Comrade Leader Ram Bahadur Thapa (Badal). On 2 April 2004 a delegate of the Minister refused their visa applications.THE TRIBUNAL With the assistance of their migration agent, the appellant lodged an application for review in the Tribunal on 12 April 2004. On 25 May 2004 the Tribunal wrote to the appellant’s migration agent enclosing information about the rights of Nepalese nationals to reside in India pursuant to a Treaty of Peace and Friendship between the two nations. The Tribunal indicated in its letter that the appellant would be invited to comment on the information at an interview to be conducted during the Tribunal hearing. The Tribunal convened a hearing on 21 September 2004 at which the appellant gave evidence. Amongst other things, the appellant told the Tribunal that the phone call he received in February 2002 was made by someone speaking on behalf of the Maoist leader Ram Bahadur Thapa, not by the leader himself. The Tribunal discussed with the appellant independent evidence regarding the right of Nepalese to live and work in India. On 20 October 2004 the Tribunal handed down a decision dated 27 September 2004 in which it affirmed the delegate’s decision. The Tribunal’s findings and reasons may be summarised as follows:1.The Tribunal found that the appellant had not been persecuted in Nepal. It accepted that he might have been asked to assist the Maoists and that he had refused. However, it found that:(a)he then spent 18 months in Nepal during which time he could have been harmed by them had they wanted to;(b)he did not sell his business or house until four months before leaving for Australia and the Maoists could have found him easily.2.These conclusions were discussed with the appellant at the hearing, who claimed that he kept moving around which was why he had not been harmed.3.The Tribunal also found that the appellant could move to India if he feared persecution in Nepal. It did not accept the appellant’s claims that the Maoists would pursue him across India to punish him for refusing to help them. The Tribunal considered country information that indicated there was no evidence that Nepalese Maoists had harmed Nepalese in India. This country information was discussed with the appellant at the hearing.4.The Tribunal considered that, because the appellant and his wife had previously resided in India, any hardship they might find in living in India would not be an unreasonable sacrifice in order to avoid any harm they feared in Nepal.THE FEDERAL MAGISTRATES COURT

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

EDMONDS J
The appellant has not advanced any basis upon which I could conclude that his Honour erred in dismissing this ground of the amended application/further amended application.CONCLUSION The appellant has failed to demonstrate that the decision of the Federal Magistrate is erroneous. The appeal must be dismissed with costs.

Ratio Decidendi

Legal Principle Established

Established by: EDMONDS J

Full text does not contain this section.