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MIGRATION - Protection visa - judicial review - allegation of lack of bona fides by Tribunal - decision made on basis of evidence reasonably before it - no reviewable error.

NAJN v Minister for Immigration [2002] FMCA 272 (8 November 2002)

NAJN v Minister for Immigration [2002] FMCA 272 (8 November 2002)
Last Updated: 11 November 2002


[2002] FMCA 272

MIGRATION - Protection visa - judicial review - allegation of lack of bona fides by Tribunal - decision made on basis of evidence reasonably before it - no reviewable error.

Migration Act 1958 (Cth) ss.36(2), 474

Minister for Immigration v Thiyagarajah (1998) 80 FCR 543

Minister for Immigration v Al-Sallalh (1999) 94 FCR 549

NAAV v Minister for Immigration [2002] FCAFC 228

NAGT of 2002 v Minister for Immigration [2002] FCAFC 319

NAAG of 2002 v Minister for Immigration [2002] FCA 713

SBAU v Minister for Immigration [2002] FCA 1076




File No:

SZ 565 of 2002

Delivered on:

8 November 2002

Delivered at:


Hearing Date:

4 November 2002

Judgment of:

Raphael FM


Counsel for the Applicant:

Mr D Burwood

Solicitors for the Applicant:

Ward Maxwell & Co

Counsel for the Respondent:

Mr J Smith

Solicitors for the Respondent:

Clayton Utz


(1) Application dismissed.

(2) Applicant pay the respondent's costs in the sum of $4,000.00.




SZ 565 of 2002








1. The applicant, who is a citizen of Nepal, arrived in Australia on 28 May 1999. On 9 July 1999 he lodged an application for a protection (Class AZ) visa with the then DIMA. On 2 September 1999 a delegate of the Minister refused to grant a protection visa and on 5 October 1999 he applied for a review of that decision. The review was carried out by the Refugee Review Tribunal who made its decision on 4 April 2002 and handed it down on 30 April 2002. The Tribunal's decision was to affirm the decision of the Minister's delegate. It is in respect of that decision that the applicant seeks review.

2. The facts indicate that the applicant was a businessman in Nepal who owned a garment factory in Kathmandu. He established his factory in 1994 and joined the National Democratic Party of that country. It is accepted by the Tribunal that between 1994 and the time he left Nepal in 1997 to live in India he was targeted by way of threats and requests for financial contribution by the Maoists rebel opposition in Nepal.

3. The applicant gave evidence to the Tribunal that whilst he was in India between 1997 and 1999 he did not come into contact with Maoist rebels.

4. The decision of the Tribunal accepted that the applicant had suffered in Nepal at the hands of the Maoists but came to the conclusion that he did not have a well founded fear of persecution for convention reasons because of his ability to relocate in a third country, namely India. This is because of the existence of the Treaty of Peace and Friendship that was ratified between India and Nepal in 1950.

5. The cases on s 36(2) of the Migration Act and in particular Minister for Immigration v Thiyagarajah (1998) 80 FCR 543 and Minister for Immigration v Al-Sallal (1999) 94 FCR 549, identify three tests for a decision as to whether an applicant has effective protection in a third country. These are:

i) Will the applicant be permitted lawfully to reside, enter and re-enter the third country?

ii) Is there a risk that the third country will return the applicant to his or her country of nationality?; and

iii) Does the applicant have a well founded fear of persecution in the third country itself?

6. The Tribunal came to the view that in this case the first two questions have been answered satisfactorily by the existence of the Treaty and decided, on the evidence before it, that the Maoist threat to individuals such as the applicant was contained within Nepal and would not cause him concern if he lived in India.

7. There were two pieces of evidence upon which the Tribunal relied to come to the above conclusion. The first was the statement by the applicant that he had lived in India between 1997 and 1999 and had not had any problem with the Maoists and the second was the sight of approximately six documents which are referred to at [70 CB] and reproduced in the Court Book. It is to be noted that whilst the applicant provided some documentary evidence referred to on [68 CB] this evidence did not involve the position of Nepalese citizens in India.

8. The applicant's Counsel made it clear at the commencement of the proceedings that he was relying on the Hickman requirement for a decision to be made bona fide (and his submission that the decision maker failed in this regard) to avoid the restrictions imposed by s 474 of the Migration Act as interpreted by the Full Bench of the Federal Court in NAAV v Minister for Immigration [2002] FCA FC 228.

9. The applicant submitted that in relying upon the sources of information to which I have referred the Tribunal did not make a bona fide - described by the applicant's Counsel as "genuine" - attempt to exercise its powers. Mr Burwood took me in some detail to the articles and submitted that they were based on the situation in Nepal and did not address the situation outside of that country. In particular they did not address the situation of Nepalese citizens living in India. He also complained that the Tribunal failed to check whether there was any further information that would assist the applicant in putting his case. Only then, it was argued, the Tribunal could genuinely be able to decide if the applicant would be afforded proper protection in India.

10. The applicant raised two additional matters which went to the same point. The first was that whilst the articles indicated that Maoist influence was gaining ground in the diaspora, the threat of this momentum had not been dealt with in the Tribunal's considerations. The third point was that the availability of third country protection and its effect upon the applicant's "well founded fear of persecution" was only raised with the applicant at the Tribunal hearing and that the applicant did not have a proper opportunity to respond.

11. In NAGT of 2002 v Minister for Immigration [2002] FCAFC 319 the Full Bench at [27] -[28] explained the operation of the Hickman "bona fide attempt" proviso.

"In Wu v Minister for Immigration [2002] FCA 1242, Sackville J summarised the approach taken in NAAV v Minister for Immigration to the first of the Hickman conditions, in terms (at [59]) with which we agree:

`the touchstone that emerges from the judgment in NAAV [v Minister] is that a decision of the MRT will satisfy the first Hickman condition if it is the consequence of an honest attempt to act in pursuance of the powers of the tribunal. There may be cases where the disregard of statutory requirements or, indeed, of the evidence, is so `blatant' (to use von Doussa J's word) that an inference can be drawn that the decision-maker has not honestly attempted to exercise the relevant statutory power. There may also be cases where the decision-maker has knowingly exercised a power for an improper purpose: Diahatsu Australia Pty Ltd v Federal Commissioner of Taxation (2001) 184 ALR 576, at 587, per Finn J. But the fact that the tribunal has misconstrued the legislation or committed procedural errors will not, of itself, ordinarily establish that it has not honestly attempted to exercise its power: Diahatsu v FCT, at 590."

12. A decision made with a lack of good faith must also be distinguished from a decision which is made based upon an irrelevant consideration or a misunderstanding of the right question to answer or a decision that is capricious, or arbitrary or lacking in probative foundation or a rational connection in circumstances present, or fanciful (NAAG of 2002 v Minister for Immigration [2002] FCA 713 at [13].

13. No court has found it possible to create a definitional template into which all cases in which a lack of bona fides exists fall and all others will not. In SBAU v Minister for Immigration [2002] FCA 1076 at [31] and [32] Mansfield J made it clear that the decision as to whether or not a decision crossed the line between unreviewable error and lack of bona fides was one of fact with which the court must wrestle.

14. Whilst it is true that the material relied upon by the Tribunal to establish that the applicant would not be in danger if he lived in India was mainly directed at the situation in Nepal, that was not exclusively the case. There is information at e.g. [91], [102] or [108] which would support a view that any activities of the Maoists in India are restricted to seeking sanctuary and training in that country, as opposed to actively harassing members of the Nepalese diaspora. When combined with the evidence of the applicant himself that he had no problems in the two years in which he lived in India I would suggest that far from being a conclusion reached with a lack of good faith it was a decision which could be supported on the evidence.

15. The two complaints made that the changing dynamic in India had not been addressed by the Tribunal and that the Tribunal only raised the question of Indian asylum at the hearing are not sustainable. There was no evidence produced by the applicant that the dynamic was changing in such a way that his position as an Nepalese exile in India was likely to change from that upon which the Tribunal took note in the country information referred to. As I pointed out to Mr Burwood in arguendo it is well known that the Tribunal accepts late information and considers it so there was opportunity for the applicant to have provided such information if it had existed. I do not believe that the Tribunal ambushed the applicant by making the point about his possible residence in India. The applicant volunteered that he had resided in India for two years and the existence of the treaty. Because this was a matter upon which the Tribunal might make a decision unfavourable to the applicant he was questioned about it. The actions of the Tribunal are equally consistent with providing the applicant natural justice. Even if it was arguable that by doing what it did the Tribunal had not provided the applicant with natural justice, that is no longer a reviewable matter.

16. I am unable to accept the applicant's submissions. I cannot see any available grounds for review of the decision of the Tribunal. I dismiss the application. I order that the applicant pay the respondent's costs. This order is in addition to the order made on 16 August 2002. I assess the costs pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules in the sum of $4,000.00.

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


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