SZERD v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2006-05-12|Before: 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 on the information at an interview to be conducted during the Tribunal hearing. 5 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:

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.

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.

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.

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 6 The appellant filed an application under the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth) ('the Act') in the Federal Magistrates Court on 9 November 2004. He filed an amended application on 22 March 2005 and a further amended application in that court on 8 December 2005. 7 The Federal Magistrate heard the further amended application on 8 December 2005. The appellant made no oral submissions before his Honour; the appellant indicated that he relied on the written submissions. The Federal Magistrate gave judgment and made orders on 27 January 2006. 8 In his reasons, the Federal Magistrate noted that the appellant's amended application was a combined application and written submissions, and that it was difficult to follow. His Honour identified a number of allegations in it: denial of natural justice, bias, apprehended bias, failure to disclose the particular construction the Tribunal gave to information from different independent sources, denial of procedural fairness and a contention that internal relocation was not an option for the appellant. 9 His Honour also noted that the further amended application which the appellant handed up at the Court hearing was a copy of the amended application. 10 His Honour analysed and dismissed the appellant's grounds relating to: · Bias and apprehended bias - [13] to [18]. · Failure to put to the appellants the Tribunal's construction of the country information - [19] to [22]. · Failure to afford natural justice - [23] and [24]. · Internal relocation - [25] to [32].

The APPEAL 11 The appellant's notice of appeal contained four grounds numbered 2 to 5 inclusive.

Ground 2: Failure by the Tribunal to observe proper procedures 12 The Federal Magistrate dealt, at [24], with the appellant's claim that the Tribunal did not observe proper procedures, noting that the appellant had not indicated what procedures in Division 4 of Part 7 of the Act had allegedly not been followed by the Tribunal. His Honour concluded, in the absence of any evidence to the contrary, that the Tribunal appeared to have complied with the requirements of the Division. 13 The appellant repeated this claim in the notice of appeal, again without identifying any alleged deficiency in the Tribunal's handling of his application for review. I find myself in no better position on the hearing of the appeal than the Federal Magistrate was in at the hearing of the amended application/further amended application. The appellant's failure to nominate any procedure or procedures that the Tribunal should have followed but failed to follow, indicates that there is no substance in this ground of appeal.

Ground 3: Failure by the Federal Magistrate to observe proper procedures and consider all the legal issues 14 The Federal Magistrate was required to hear and determine the appellant's application for review, and his Honour carried out that function. The appellant alleged that his Honour 'repeated the same', meaning the same failure to observe proper procedures that he alleged in relation to the Tribunal. This allegation is baseless and must be rejected. 15 The appellant also claimed that his Honour failed to consider all the legal issues applicable to his matter. It is apparent from his Honour's reasons that his Honour found it difficult to discern what grounds the appellant sought to rely upon before him, but it is also clear that his Honour carefully analysed the appellant's pleading and identified all of the issues that he had raised in it. His Honour then examined and decided on each issue in turn. The appellant's claim that his Honour failed to consider all the legal issues cannot be sustained in the light of the detailed reasoning set out in his Honour's reasons.

Ground 4: Failure by the Tribunal to afford procedural fairness, failure to act in accordance with the Refugees Convention 16 The appellant's contention that the Tribunal failed to afford him procedural fairness is a repetition of his complaint in ground 2 that the Tribunal did not follow proper procedures. As indicated at [13] supra, it has no substance. 17 The Tribunal was required to determine whether the appellant is a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol. In its 'Findings and Reasons' (see [5], supra), the Tribunal accepted that the appellant may have been approached by Maoists and that he had refused their advances. It noted, however, that the appellant lived in Nepal for the next 18 months without being harmed by the Maoists, and did not sell his house and business until four months prior to his departure. The Tribunal therefore rejected the appellant's claim that he was pursued and threatened by Maoists. 18 The Tribunal also found that if the appellant fears being pursued by the Maoists, he has the right to reside in India and could reasonably be expected to live there. 19 The conclusions that the Tribunal drew were ones that were open to it on the material before it. Those conclusions led inevitably to a finding that the Refugees Convention does not apply to the appellant. The Tribunal's approach was entirely in accord with the terms of the Convention.

Ground 5: Bias and apprehended bias on the part of the Tribunal 20 The Federal Magistrate gave primacy to the issue of bias and apprehended bias in his reasons, describing it as '[t]he most serious of the grounds pleaded by the [appellant]' ([13]). His Honour concluded that the appellant had failed to discharge the onus of demonstrating bias or apprehended bias, noting in particular that a transcript of the hearing before the Tribunal had not been tendered ([14], [18]). 21 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 22 The appellant has failed to demonstrate that the decision of the Federal Magistrate is erroneous. The appeal must be dismissed with costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Solicitor for the Appellant: The appellant appeared in person

At a glance

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Judgment (17 paragraphs)

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Legislation Cited (2)

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