NABF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

introduction 1 This is an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") by which the Tribunal affirmed decisions of delegates of the respondent not to grant the applicants protection visas. The applicants are a husband and wife and their daughter. They are citizens of Nepal. As the claims of each of the applicants were dependent on the claim of the husband I shall hereafter refer to him as the applicant. 2 Mr Newman appeared for the applicant before this Court having been briefed so to do only shortly before the hearing. He sought to file an amended application for review which made explicit reference to s 39B of the Judiciary Act 1903 (Cth). Mr Reilly for the respondent objected to the filing of the amended application relying on s 477(2) of the Migration Act 1958 (Cth) ("the Act"). In the view which I have taken of this matter it is not strictly necessary for me to rule on the issue of whether the amended application may be filed as I am of the view that the application must fail whether the original application or the proposed amended application is relied upon. 3 I note, however, that having regard to the terms of the original application which was drawn apparently without legal assistance, it is not, in my view, clear that an order allowing the filing of the proposed amended application would have offended s 477(2). I refer to the remarks of Hely J in the matter of Singh v Minister for Immigration and Multicultural Affairs [2002] FCA 502 at [33]‑[40]. 4 The delegate of the respondent who determined the husband's application was not satisfied that the applicant was a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"). The delegate who determined the application of the applicant and his wife concluded that "the applicant may fear suffering mistreatment by Communist supporters" in Nepal. However, the delegate concluded that: "[t]here would appear to be no impediment to the applicant availing himself of the protection of the Nepalese authorities in the event that he experiences any harassment from Communist sympathisers." On this basis the delegate concluded that the applicant's fear of persecution if he returns to Nepal is not well‑founded. 5 The applicant sought review by the Tribunal of the decision of the delegate of the respondent. On 10 October 2001 the Tribunal wrote to the applicant advising that it had considered all of the papers relating to his application but was unable to make a favourable decision on that material alone. It invited him to attend a hearing on 26 November 2001. When no response to its invitation was received the Tribunal tried unsuccessfully to contact by telephone the applicant's adviser. It also checked the address disclosed by its records as the address of the applicant with the address held by the Department of Immigration and Multicultural Affairs. The two addresses proved to be the same. 6 The Tribunal in these circumstances determined to proceed with the review. No complaint is made of its decision to act in this way. The Tribunal in its written reasons for decision fairly summarised the applicant's claims. It referred in the usual way to independent country information. In its written reasons for decision the Tribunal observed: "Although the applicant's claims are of a serious nature, they are so general and lacking in detail that the Tribunal is unable to establish the relevant facts. The Tribunal wished to question the applicant about his political experiences and the reasons he left Nepal. The Tribunal notes that the applicant claims that he could not seek the protection of the Nepalese authorities and the Tribunal wished to discuss with him his attempts to seek their protection and their response. The Tribunal notes that some of the Communist parties are represented in Parliament. … There is also independent evidence before the Tribunal from DFAT which states that as at 1995 during the time of his claimed problems, there is no evidence that the Communist Party of Nepal (United Marxist Leninist) harasses or kills supporters of other parties. However, the applicant's claims are so vague that the Tribunal is unable to establish which faction other than the Maoists he is concerned about." The Tribunal concluded that having considered the evidence as a whole it was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. 7 The applicant contended before the Court that by adopting the above approach the Tribunal failed to apply the appropriate test for the grant of a protection visa as it failed to make critical findings of fact. It was argued that the Tribunal had breached "the mandated requirement as set forth in s 430(1)(c) and (d) of the Act which caused it to go beyond jurisdiction in that it erred in law". 8 This Court has observed on a number of occasions that the Tribunal is not required to proceed in a mechanical way in considering the criteria which would allow it to be satisfied that an applicant for a protection visa is a person to whom Australia owes protection obligations under the Convention. If the Tribunal makes a clear finding adverse to the applicant with respect to a crucial criterion it may be quite unnecessary for it to make findings with respect to other criteria. 9 In my view this was such a case. The Tribunal was not satisfied with respect to the criterion that the applicant's fear of persecution was well‑founded. It was not satisfied because of the vague nature of the applicant's written claims of precisely which political group he feared, what steps he had taken in the past to obtain the protection of the Nepalese authorities and whether he would be able to obtain such protection in the future. 10 In my view in the circumstances of this case the decision of the Tribunal that it was not satisfied of an essential element of the test which the applicant was required to satisfy, namely that he had a well‑founded fear of persecution were he to return to Nepal, made it unnecessary for the Tribunal to make additional findings which the applicant contends that it should have made. In my view it was open to the Tribunal on the material before it to reach the decision that it did and no ground upon which this Court could review the decision has been identified. 11 In view of my findings I refuse the applicant leave to file the amended application on the basis that no useful purpose would be served by so doing. I make it clear that I have proceeded on the assumption that the original application was one properly invoking the jurisdiction of the Court under s 39B of the Judiciary Act 1903 (Cth). 12 There will be an order that the applicant pay the respondent's costs.