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MIGRATION - Review of RRT decision - protection visa - fear of persecution by reasons of political activity - credibility of applicant's evidence - whether relocation in home country a solution - whether all relevant evidence was before the Tribunal - confirmation that review of the RRT is a review by way of re-hearing de novo - whether the Tribunal acted bona fides.

NAPY v Minister for Immigration [2002] FMCA 286 (11 December 2002)

NAPY v Minister for Immigration [2002] FMCA 286 (11 December 2002)
Last Updated: 13 December 2002


[2002] FMCA 286

MIGRATION - Review of RRT decision - protection visa - fear of persecution by reasons of political activity - credibility of applicant's evidence - whether relocation in home country a solution - whether all relevant evidence was before the Tribunal - confirmation that review of the RRT is a review by way of re-hearing de novo - whether the Tribunal acted bona fides.

Migration Act 1958 (Cth), ss 36(3), (4); 420(2)(b); 474

R v Hickman; ex-parte Fox and Clinton (1945) 70 CLR 598

Muin v Refugee Review Tribunal (2002) 76 ALJR 966

Inderjit Singh v Minister for Immigration [2001] FCA 73

SAAZ v Minister for Immigration [2002] FCA 791

NADR v Minister for Immigration [2002] FCAFC 293

WAEM v Minister for Immigration [2002] FMCA 259




File No:

SZ 752 of 2002

Delivered on:

11 December 2002

Delivered at:


Hearing Date:

13 November 2002

Judgment of:

Raphael FM


Counsel for the Applicant:

David Burwood

Solicitors for the Applicant:

Ward Maxwell & Co

Counsel for the Respondent:

Stephen Lloyd

Solicitors for the Respondent:

Blake Dawson Waldron


(1) Application dismissed.

(2) Applicant pay the respondent's costs in the sum of $3,750.00.




SZ 752 of 2002








1. The applicant in these proceedings is a citizen of Nepal who arrived in Australia on 29 March 2000. He was immigration cleared. On 28 April 2000 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs under the Migration Act 1958 ("Migration Act"). On 9 May 2000 a delegate of the Minister refused to grant a protection visa and on 7 June 2000 the applicant applied for review of that decision. The review was carried out by the Refugee Review Tribunal. A decision was made on 7 June 2002 and handed down on 2 July 2002 affirming the delegate's decision not to grant a protection visa.

2. When the matter was before the delegate the applicant informed him (and provided some documentary evidence) [CB 54-59] that he was active politically in the Nepali Congress Party in Kathmandu. As a result he had received threats from Maoists insurgents in that country and he believed that he would face persecution from them, which the authorities in Nepal could not protect him from, if he returned. This constituted his well founded fear of persecution for convention reasons. The delegate was not satisfied that the Nepali Government was not attempting to protect its citizens from Maoists "Let alone for a convention related reason." The delegate was also of the view that the violence did not extend to all districts in Nepal:

"I note that the applicant is a young educated businessman, recently married with one child. Therefore I consider that relocation within Nepal to such a district is a realistic option for the applicant."

3. The applicant received some assistance from a migration agent to prepare his application for review to the Tribunal. However, he appeared in the Tribunal by himself. He did not provide the court with any evidence as to what occurred at the Tribunal hearing e.g. by way of transcript nor did he put on an affidavit as required under the rules. On his behalf it was submitted that when he attended the Tribunal he believed that his main task was to convince the Tribunal that his well founded fear of persecution existed throughout Nepal and that relocation within that country was not an option.

4. It is submitted that what occurred at the Tribunal was that the applicant repeated his history of political activity and persecution but was not asked to deal with the situation in Nepal outside of Kathmandu. Instead he was questioned by the Tribunal as to the possibility of his relocating to India. There is in existence a Treaty of Peace and of Friendship which was ratified in July 1950 between Nepal and India whereby each Government agreed to acknowledge and respect the other's sovereignty, territory and integrity and independence; and to grant rights equal to those of its own citizens to the nationals of the other residing in its territory. According to the country information utilised by the Tribunal this situation still pertains.

5. The applicant submits that he was unprepared to deal with the questions about India. He had no personal knowledge of that country as he had never been there and he had no "country information" of his own with which to counter the suggestion by the Tribunal that Maoists were not active in that country and that he would be protected by the Indian Police or security system.

6. The Tribunal heard what the applicant did have to say and in its findings and reasons stated:

"The Tribunal found the applicant to be credible. His claims are consistent with independent evidence before it. There is abundant evidence before the Tribunal that members and supporters of the Nepali Congress Party have been seriously harmed/eliminated by the Maoists. The Tribunal is satisfied that the applicant's membership of the Nepali Congress Party and his political opinion would be public knowledge in Nepal and the Tribunal is satisfied that there is a real chance that he would be seriously harmed by the Maoists for reasons of his political opinion should he return to Nepal now or in the reasonably foreseeable future.

However, as stated earlier in this decision, Australia does not have protection obligations to a person who has effective protection in a third country. ...

Independent country information set out in this decision states that as a matter of practical reality, the applicant, as a citizen of Nepal, can enter, re-enter and live in India, with all the rights and privileges available to nationals of India without any fear that he will be forced to return to Nepal. The applicant's own evidence confirms this."

7. The Tribunal's findings and reasons end oddly with the following paragraph:

"The Tribunal is therefore satisfied that the applicant has effective protection in India and, accordingly, Australia does not have protection obligations to the applicant. It is therefore unnecessary to undertake an assessment of the substantive merits of the applicant's claim for refugee status."

8. I am not entirely sure what the Tribunal meant by this last sentence. The paragraphs reproduced earlier seem to indicate that the Tribunal had come to the conclusion that, absent the ability to relocate to India, the applicant would have been considered a genuine refugee who should have been granted asylum. Whilst the incongruity is noted I do not believe it is relevant to the decision which I have to make.

9. The applicant argues that by failing to give him a proper opportunity to deal with the issue relating to relocation in India the Tribunal did not deal with his application fairly and genuinely. He also argued this failure constituted a breach of s.420 of the Migration Act and in particularly s.420(2)(b) which required the Tribunal to act according to "substantial justice and the merits of the case". He argued that the Tribunal's method of proceeding did not allow for a proper consideration of s.36(4) of the Act which together with sub-s.(3) deal with the right to reside in a third country:

"36(3) Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

(4) However, if the non-citizen has a well founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, sub-s (3) does not apply in relation to that country."

10. It is submitted by the applicant that a combination of these failures constitutes a dealing by the Tribunal with the applicant in a non bona fide manner and as such falls within the exceptions to the privative clause found at s.474 of the Migration Act according to the dicta of Dixon J re R v Hickman; ex-parte Fox and Clinton (1945) 70 CLR 598.

11. The respondent argues that the decision of the High Court in Muin v Refugee Review Tribunal (2002) 76 ALJR 966 makes it clear that a court which is reviewing the decision of the Tribunal must have evidence before it that the applicant would have acted in a particular way or produced particular evidence to refute the Tribunal's findings if he had known the case he was to meet. This interpretation of the Muin decision was approved by Keifel J NAOR v MIMIA [2002] FCAFC 293 and it is one which I accepted in WAEM v MIMIA [2002] FMCA 259. No such evidence has been provided in this case.

12. The respondent also points out that the Tribunal did put to the applicant that he might be able to relocate to India. At [CB 71]:

"The independent evidence before the Tribunal regarding the applicant's ability, as a Nepalese citizen, to go and live in India and be safe from the Maoists there was discussed with the applicant. The applicant agreed that he could have gone to India but he said that at the time of his departure from Nepal he was so frightened and panic stricken by what was happening that he took the opportunity to come to Australia because that was the opportunity which arose."

Again, the arguments of the applicant might have had some more force if evidence had been produced as to what occurred at the Tribunal. There is no suggestion that the ratio of the Tribunal's decision, the existence of a third country in which the applicant had the right of abode, was not put to the applicant.

13. The applicant's inability to deal with the s.36 point arose out of his own misunderstanding of the relevant law. As expressed by his Counsel, he believed that the Tribunal was only going to deal with the decision of the delegate. He was unaware that a hearing before the Tribunal is a hearing "de novo" in which all the findings of the delegate are open to review SAAZ v Minister for Immigration [2002] FCA 791.

14. The applicant was, it would seem, also ignorant of the provisions of s.36. Whilst this may be understandable it does not enhance the applicant's case.

15. Whilst the interpretation of what constitutes a lack of bona fides in decision making differ, all proceed on the basis that the hurdle which must be jumped is a high one. Perhaps the most telling argument against such a finding in this case is the fact that there was a period of about five weeks after the hearing which took place on 30 May 2002 before the decision was handed down on 2 July 2002. During that time the applicant did not seek to provide any evidence about his inability to go to India or more importantly why s.36(4) might apply to that country notwithstanding that material provided to the Tribunal after a hearing, even after a decision is made but before it is handed down, must be taken into account by the Tribunal (Inderjit Singh v Minister for Immigration [2001] FCA 73).

16. The applicant also raised in argument the failure of the Tribunal to utilise country information which dealt directly with the situation of Nepalis in India and their risk from persecution by Maoists. Mr Burwood submitted that the information, although variously sourced, looked at the problem from a Nepali perspective. This may be the case but there is evidence in the documents that Maoists tend to use India more to train and regroup than to attack Nepalis living in that country. There is also evidence that the India security services are actively trying to assist the Nepalis in their counter insurgency activities against the Maoists. Both of these facts would allow for the findings made by the Tribunal. In any event, the applicant has not produced any other evidence that would indicate danger to his life in India.

17. In all these circumstances I am unable to find a lack of bona fides in the Tribunal's decision making processes. I must therefore dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $3,750.00 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM


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