FEDERAL COURT OF AUSTRALIA

SZEUU v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1620

MIGRATION – appeal from Federal Magistrates Court – reasonableness of relocation – no error of law or principle

SZEUU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1105 OF 2005

TAMBERLIN J

SYDNEY

2 NOVEMBER 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

THE COURT ORDERS THAT:

The application be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

REASONS FOR JUDGMENT

1                     This is an application by the appellant to vary or set aside an order made by the Court on 9 September 2005 dismissing with costs an appeal from Federal Magistrate Mowbray delivered on 17 June 2005. 

2                     The appeal was dismissed for the reason that the appellant had failed to appear on the hearing.  Prior to the hearing, copies of what purport to be medical certificates were sent to the Court.  These were unsatisfactory.  The appellant did not appear on the day of the hearing but he has now filed an affidavit that, from 4 September 2005, he was suffering from dizziness, vomiting and difficulties in breathing and that this applied up to 8 September.  The certificates were sent to, and received by, the Court on 8 September, the day before the hearing.

3                     The appellant has sworn that he was very sick, he didn't have any legal representative and he didn't have anyone to accompany him to the Court and feared that he might get a blackout on the way and lose his life. He said that, even if he had attended the Court, he could not then have talked or understood anything.  There is no evidence to the contrary and I accept now, having seen the appellant and read the affidavit, that he may well have been sick at the relevant time.

4                     However, there is no point in setting aside or varying the order, in my view, unless the appellant can at least indicate that there is some trace of an arguable case to the effect that the decision of the Federal Magistrate and of the Tribunal erred in principle and that there was an error that went to jurisdiction.

5                     The case before the Tribunal turned on the issue of relocation. The Tribunal member was satisfied that the appellant is a national of Nepal, however, the documents proffered by the appellant were not accepted as genuine for reasons which are given by the Tribunal member at p 14 of her decision.  Having pointed out that the evidence of the appellant was very vague and lacked cogency, it was nevertheless accepted by the Tribunal member that there had been Maoist activity in the area of his village, Okhaldunga.  It was accepted that the appellant may fear being harmed by Maoists in the village, either for the reasons that he gave or because of a general fear that a villager may have a result of Maoist activity in Eastern Nepal.  On this basis and this assumption, the Tribunal member then considered the question of relocation. 

6                     The Tribunal member considered whether it would be reasonable for the appellant to relocate to Kathmandu or some other part of the country and the chances of the appellant being harmed for a Convention reason and whether this chance was remote.  The Tribunal member noted that the village of Okhaldunga is over 120 kilometres from Kathmandu and relied on country information of a general nature from the UK Home Office in 2003 to the effect that internal flight in Nepal is a viable option for the majority of people fearing violence. In Kathmandu and other cities in Nepal, there is safety from Maoist violence generally and from Maoist reprisals in particular.  This was said by the Tribunal member to be consistent with the appellant's own experience in Kathmandu.  The Tribunal member gave detailed reasons at p 16 of the decision for reaching the conclusion that relocation to Kathmandu was a reasonable option for the appellant.  This is purely a question of fact within the jurisdiction of the Tribunal and an error in relation to it does not give rise to any question of principle or law which would warrant judicial review by the Federal Magistrate or amount to an error by the Magistrate if relief were refused in relation to the appeal.  In the hearing before me, the appellant said that his wife and siblings were in another village in Nepal, some distance from Okhaldunga.

7                     When the matter came on for hearing before me today, the appellant did not really make any submissions that indicated that there was any arguable case in relation to any error of law or principle on the part of the Tribunal or the Federal Magistrate.  There are some grounds set out in the Notice of Appeal and, in my view, these have been addressed satisfactorily in the submissions put on behalf of the respondent.

8                     Accordingly, for the above reasons, I refuse the application by the appellant to vary or set aside the decision made by me on 9 September 2005 dismissing the appeal with costs.

9                     I dismiss the present application with costs.

Associate:

Dated:              9 November 2005