“X” v Minister for Immigration and Multicultural Affairs

[2000] FCA 372

FEDERAL COURT OF AUSTRALIA

“X” v Minister for Immigration & Multicultural Affairs [2000] FCA 372

MIGRATION – protection visa – application for an order of review of a decision of the Refugee Review Tribunal refusing grant – where no grounds disclosed in application

PRACTICE & PROCEDURE – application for an adjournment of hearing pursuant to s 57 of the Legal Aid Commission Act 1979 (NSW) – where applicant had lodged notice of appeal to Legal Aid Review Committee – whether there are special circumstances preventing the Court from adjourning the proceedings – where applicant in detention – where respondent incurring costs of that detention – where no prospect of recovery of costs – where nothing in notice of appeal to suggest prospect of success in the appeal

WORDS & PHRASES – “special circumstances”

Legal Aid Commission Act 1979 (NSW), s 57
Migration Act 1958 (Cth), s 476(1)

“X” v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 79 OF 2000

EMMETT J
SYDNEY
24 MARCH 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 79 OF 2000

BETWEEN:	“X” Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
JUDGE:	EMMETT J
DATE OF ORDER:	24 MARCH 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

1.        The applicant pay the 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	N 79 OF 2000

BETWEEN:	“X” Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	EMMETT J
DATE:	24 MARCH 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Nepal who arrived in Australia on 7 June 1996.  On 3 June 1999 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.  On 28 June 1999 a delegate of the Minister refused to grant a protection visa.   On 10 November 1999 the applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of that decision.  On 1 February 2000 the Tribunal affirmed the decision not to grant a protection visa.

2. On 3 February 2000 the applicant filed with this Court an application for an order of review in respect of the decision of the Tribunal.  The application specifies no grounds of review.  There has, however, been no application to dismiss the application as incompetent and therefore I shall treat it as a valid application within time. 

3. The matter first came before me on 18 February.  On that day I indicated that I was able to fix the matter for hearing on 28 February.  However, the applicant indicated that he wished time to obtain legal aid.  I suggested a hearing on 28 February 2000 because the applicant has been in detention for some time.  In order to give the applicant time to apply for legal aid I fixed the matter for hearing today. When the matter was called on today the applicant requested an adjournment to await the outcome of an application for review of a decision of the Legal Aid Commission refusing his application for legal aid.

4. Section 57 of the Legal Aid Commission Act 1979 (NSW) provides that:

   “Where it appears to a court or tribunal, on any information before it:

   (a)that a party to any proceedings before the court or tribunal:

   (i) has appealed, in accordance with section 56, to a Legal Aid Review Committee and that the appeal has not been determined; or

   ………………………

   (b) that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings; and

   (c)that there are no special circumstances that prevent it from doing so,

   the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit.

   That provision was relied on by the applicant in support of his application to me for an adjournment. 

5. The applicant applied for legal aid on 29 February 2000 by facsimile communication of an application for legal aid.  The applicant had already received a letter dated 3 February 2000 from the Legal Aid Commission indicating that the chances of success in the Federal Court of a review of the decision of the Tribunal were not good.  On 2 March the Legal Aid Commission wrote to the applicant indicating that the application for legal aid had been carefully considered and had been refused because, on the information available, the application did not satisfy the merit test as the proceedings for which legal aid is sought do not have reasonable prospects of success. 

6. On 7 March the applicant lodged a notice of appeal to the Legal Aid Review Committee.  The grounds of appeal appear to be somewhat misconceived in that they endeavour to formulate grounds of criticism of the decision of the Tribunal.  Basically, the notice of appeal asserts that there are inconsistencies in the decision of the Tribunal.  That, of course, would not be a ground of review before this Court in any event. 

7. As I have said, the applicant is presently in detention.  Costs are being incurred daily by the continuation of that detention.  No grounds have been specified and, for reasons which I indicate below, I perceive no basis upon which the application to this Court could be successful.  I have already extended by four weeks the time which would have been available to the applicant to obtain legal aid.  There is nothing in the notice of appeal to the Legal Aid Review Committee to suggest that there is any prospect of success in that appeal.  Further, the applicant delayed some 10 days after the first directions hearing in making his application for legal aid.

8. It has not been put that the appeal is not bona fide, or is frivolous or vexatious, although it seems to me that it has no substance and no prospect of success.  In any event I consider that the circumstances that I have outlined above particularly the fact that the applicant is in detention and costs are being incurred for which there is no prospect of recovery, which is the inference I would draw, are such that I conclude that there are special circumstances which would not prevent me from hearing the case today.  In the circumstances I refuse the application for an adjournment.

9. As I have said, the application to this Court contains no grounds of review.  I have read the reasons for the decision of the Tribunal of 1 February 2000.  The applicant entered Australia on a student visa which required that he undertake study for the whole period of the visa. The visa also permitted him to undertake part-time employment.  The applicant informed the Tribunal that he was aware of those conditions.  Nevertheless, he found full-time employment.

10. On 28 January 1999 the applicant was taken into custody by officers of the Department.  On 1 February 1999 the applicant’s migration agent wrote a letter saying, in part, that the applicant wished to be released on a bridging visa and wished to depart Australia on 18 February 1999.  The letter said that there was attached proof of a fully-paid airline ticket obtained from the travel agent where the applicant had booked his ticket.  The applicant informed the tribunal that he was aware that that letter had been written.

11. The applicant was granted a bridging visa on 3 February 1999 to allow him to depart from Australia on or before 19 February.  A further visa was granted, valid for stay until 27 February 1999.  The applicant, it appears, approached the Department on 26 February 1999 and submitted an application.  However, the Tribunal concluded that the application was incomplete and contained no claims at all.  The visa application on the file bears a receipt stamp dated 26 February 1999, however, that stamp has been crossed out and the dates of signature on the application have also been crossed out and the date 3 June 1999 has been added.  The Tribunal concluded that the application was not in fact lodged in any real form prior to 3 June 1999.

12. The applicant claimed that he fears persecution at the hands of the Maoist insurgents who he says he believes one of his uncles may have links with.  He has also claimed that his risk of harm is heightened because his home Jhapa is on the border of Nepal and India and Indian Naxalites may have links with the Nepalese Maoists.  The applicant claimed before the Tribunal that his motivation for leaving Nepal in 1996 was based on a fear of harm for reasons of his political opinion.  The Tribunal considered that if that were so the applicant would not have failed to have lodged a protection visa application in the period between 28 January 1999 and 26 February 1999. 

13. The Tribunal found that the applicant was aware of the terms of his student visa and that from August 1999 he was aware that he was in breach of those conditions.  In January 1999, he was detained and said there was no reason why he could not depart from Australia.  In February 1999, with his knowledge and agreement, his agent told the Department the applicant would leave Australia on 18 February.  On 26 February 1999, the applicant attempted to lodge a protection visa application without providing any details of his claimed fear of return to Nepal.  On 2 June 1999, the applicant was asked if he was prepared to leave Australia or to apply for a visa and replied “I don't know yet”.  The applicant stated at an interview on 2 June 1999, that his family had problems in Nepal related to a fight between his father and two of his uncles.

14. The Tribunal found that the applicant at most had an administrative role in a student body that is associated with the Nepalese Congress Party.  He has been absent from Nepal since 1996 and, since by his own account he claimed not to know how serious the situation was in Nepal in January 1999, the Tribunal found that he has not maintained any close association with the Nepalese Congress Party nor was he at risk of harm for reasons of his membership.  The Tribunal did not accept the applicant’s assertions that he had a high political profile and that people in his area of Jhapa expected him to become a political leader.

15. The Tribunal concluded that the applicant does not face any real chance of harm by reason of persecution for a convention reason if he returned to Nepal.  The Tribunal observed that the Nepalese Congress Party is currently governing the country and since the applicant claims to be in a long time support of that party the Tribunal found he could rely on it to provide what protection it could.  The Tribunal found that the Nepalese Congress Party is not complicit in any actions the Maoists take against any Nepalese citizen and there is no basis upon which the applicant could reasonably claim to be unwilling to avail himself of the protection of the State of Nepal for reasons of his fear of persecution at the hands of the Maoists.

16. The Tribunal considered that the material provided by the applicant, through his solicitor, clearly indicated a willingness and action on the part of the State of Nepal to quell the insurgency actions of the Maoists; in fact, that willingness is of such a nature that is has been criticised as being in breach of human rights.  Whether or not that is the case, the Tribunal considered that the State of Nepal had taken strong and decisive measures to bring the Maoists under control.

17. The Tribunal therefore found that the applicant, whose political profile is not of significance and who is from a district with a lower risk of harm than the Western or Central districts of Nepal, does not face a real chance of persecution at the hands of the Maoists and any fear he may hold in that regard is not well founded. 

18. The applicant claimed that Indian Naxalites may be providing arms and support to the Maoists.  However, the Tribunal considered that that was not supported by any of the material that he had supplied nor had the applicant provided any anecdotal evidence in that regard.  The Tribunal found that that unsubstantiated claim did not lead it to find that the applicant is at any greater risk than the risk that had already been referred to and found it to be remote and insubstantial. 

19. In any event, while the Tribunal found that the applicant’s fear of persecution at the hands of the Maoists is not well founded, it also found that the applicant had relatives who live in Kathmandu and that as a single man he has skills to find employment in that city.  That being the case, the Tribunal concluded that it would be reasonable for the applicant to relocate to Kathmandu should he fear harm in Jhapa. 

20. The Tribunal concluded that the fear claimed by the applicant is not genuine.  In any event, the Tribunal found that the applicant does not have a political profile such as to attract the adverse attention of Maoists and found that as a citizen of Nepal who does not support the Maoists any chance of harm he faces at their hands now or in the reasonably foreseeable future is remote and insubstantial and accordingly any fear he may hold is well founded.  The Tribunal also concluded that the applicant could relocate from the rural area of his home in the Eastern district of Jhapa to Kathmandu.  

21. For that reason the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. In those circumstances, there does not appear to me to be any ground for review under section 476(1) of the Migration Act 1958 (Cth). Accordingly, I consider that the application should be dismissed and that the applicant pay the respondent’s costs.

I certify that the preceding twenty one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             7 April 2000

Counsel for the Applicant:	The applicant appeared in person assisted by an interpreter
Counsel for the Respondent:	Mr G T Johnson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	24 March 2000
Date of Judgment:	24 March 2000