1 This is an appeal from a judgment of the Federal Magistrates Court of 22

September 2005 dismissing an application for judicial review of a decision of the

Refugee Review Tribunal ("the Tribunal").
On 11 April 2005 the Tribunal affirmed a decision of a delegate of the Minister for
Immigration and Multicultural and Indigenous Affairs ("the Minister") refusing to
grant the appellant a protection visa.
Background 2 The appellant is a national of Nepal.
He was detained on 8 February 2005 after having lived and worked illegally in
Australia since the expiry of his 6 week visitor's visa in November 1991.
After being detained, he lodged two protection visa applications with the
Department of Immigration ("The Department") within a week, claiming to fear
persecution for different reasons.
First, because he was a Hindu who had married a Christian and then because he had
married a woman of a lower caste.
The Tribunal's decision 3 After the Tribunal hearing the appellant in these
proceedings raised a new claim that he was persecuted because he was Christian.
The Tribunal rejected the new claim, found the appellant was entitled to live in
India and that his substantive claims were unreliable and not Convention related.
In considering the appellant's subjective fear, the Tribunal took into account the
appellant's delay in bringing his protection visa application.
The Federal Magistrate's judgment 4 Before the Federal Magistrate, the appellant
submitted that the Tribunal failed to inform him in writing of the information that
there was no record of an earlier protection visa application.
The Federal Magistrate found there was no breach of s 424A of the Migration Act
1958 (Cth) ("The Act") and that the Tribunal was entitled to reject the new claim.
His Honour found that the Tribunal's decision ultimately turned on the lack of
Convention nexus with the harm feared, rather than a right to live in another
Country.
The appeal and its disposition 5 The three grounds pursued in the appeal were
that: (i) The Tribunal failed to comply with s 424A in that it did not provide
the appellant with particulars in writing of certain information which forms part
of the Tribunal's reasons for affirming the delegate's decision.
The information was said to be "... the apparent absence of any confirmation in the
Departmental records before it of the appellant's claim to have previously lodged
an application for recognition as a refugee many years earlier".
(ii) The Tribunal erred in law in ascertaining whether any persecution the
appellant may have suffered and might suffer was for a Convention reason.
(iii) The Tribunal erred in law in its application of s 36(3) in relation to the
appellant's right to enter and reside in India.
All of the above matters were said to manifest jurisdictional error and it was
argued that the Federal Magistrate erred in failing to make findings to this
effect.
6 The first ground was based on the premise that the Tribunal had information it
was obliged to give in accordance with s 424A of the Act The Tribunal was said to
have gained this "information" from examining the Departmental file.
In effect, the "information" was the absence in the file of any record of an
earlier protection visa application.
7 The Tribunal recorded in its reasons for decision that it had before it the
appellant's Departmental file.
It did not, at that point in its reasons, say it had read the file, although it did
say it "had regard to the material referred to in the delegate's decision, and
other material available to it from a range of sources".
Later in its reasons, the Tribunal said that it had "before it no evidence of that
application [for what appears to be a residence under skills visa] or any
protection visa application that could have preceded it".
The Tribunal's reference to not having before it any evidence of an earlier visa
application may be a reference to what the Tribunal had gleaned from an examination
of the Departmental file.
However, it may also be a reference to material (or the absence of material)
furnished by the appellant in support of his application.
Indeed the solicitor representing the appellant conceded before the Tribunal that
material concerning the earlier protection visa was on the Departmental file, which
suggests that the Tribunal's reference to there being "no evidence" was not based
on an examination of the file.
It is more likely that the Tribunal was referring to an absence of material
furnished by the appellant to support his claim that he had made an earlier
application which had not been pursued to decision.
The premise is not made out.
8 The second ground does not appear to me to be one of substance.
The gist of the appellant's claim was that he incurred the wrath of his uncle for
not marrying his uncle's daughter and for marrying a Christian not of the same
class.
That claim does not point to his religion as being a basis for any harm, on his
account of what had happened in the past and might happen in the future.
The conclusion of the Tribunal that any persecution the appellant might suffer was
not "Convention related" does not involve, in my opinion, any misunderstanding or
misapplication of the applicable law.
9 As to the third matter, it was submitted that the Tribunal misconstrued the
Treaty between India and Nepal which, it was argued, did not entitle the appellant,
a Nepalese citizen, to reside in India.
Reliance was placed on the observations of Lee J in WAGH v Minister for Immigration
and Multicultural and Indigenous Affairs [2003] FCAFC 194 ; (2003) 131 FCR 269 at
278, which might be viewed as indicating that it is necessary for there to be a
prior acceptance or acknowledgement by a third country to enliven s 36(3) of the
Act.
The short answer to this argument is that it was not part of the appellant's case
that he could not enter and reside in India.
To the contrary, he indicated in his application for a protection visa that he
could enter or reside in India.
This proposition was repeated at the Tribunal at hearing.
While it appears his position on this issue wavered at the hearing, in a written
submission made after the hearing, it was not suggested that he could not enter and
reside in India.
Even if the Tribunal erred in construing the treaty (probably a question of fact in
any event), it was open to it to make the finding it did, namely that the appellant
could enter and reside in India.
10 The appeal should be dismissed with costs.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the
Reasons for Judgment herein of the Honourable Justice Moore.
Associate:Dated: 6 February 2006 Solicitor for the Appellant: Michael Jones,
Solicitor Counsel for the First Respondent: S Lloyd Solicitor for the First
Respondent: Clayton Utz Date of Hearing: 21 November 2005 Date of Judgment: 6
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