AXH16 v Minister for Immigration
[2017] FCCA 1193
•16 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AXH16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1193 |
| Catchwords: MIGRATION – Application for protection visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal considered the risk of the applicant suffering serious harm if he was to relocate to Nepal – whether the Tribunal failed to consider and give necessary weight to all of the documentary evidence provided by the applicant – whether the Tribunal failed to comply with the requirement under s424A of the Migration Act 1958 (Cth) – whether the Tribunal failed to consider the applicant was at risk of harm upon return – potential issues identified after the hearing regarding the applicant’s occupation as a photographer in relocating to Nepal and whether he had taken all possible steps to avail himself of his right to enter and reside in Nepal – parties invited to submit further submissions – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 36(3), 36(4), 424A, 424AA |
| Cases cited: BAL v Minister for Immigration & Border Protection [2017] FCA 228 Cachia v Hanes (1994) 179 CLR 403; [1994] HGCA 14 Hamod v New South Wales [2011] NSWCA 375 |
| Applicant: | AXH16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 928 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 27 April 2017 |
| Date of Last Submission: | 19 May 2017 |
| Delivered at: | Sydney |
| Delivered on: | 16 June 2017 |
REPRESENTATION
| The applicant appeared in person |
| Solicitors for the Respondents: | Mr K Eskerie, Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 928 of 2016
| AXH16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of the Administrative Appeals Tribunal dated 23 March 2016. The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa.
Background
The applicant is a citizen of India who first arrived in Australia on 31 October 2008 as the holder of a dependent spouse visa. On 12 March 2014 he lodged an application for a protection visa.
In support of that application, the applicant claimed that he was a freelance photographer who was an active member of the All India Sikh Students Federation (AISSF), and a supporter of the Khalistan movement. He claimed that the government agencies raided his studio a few times, confiscated a number of items, interrogated him and followed him. He claimed that, because of his membership of the AISSF, he was at risk of detention, interrogation and torture particularly if there was any problem concerning the Sikh groups linked with the KLF[1].
[1] It is not clear on the evidence what the KLF is, but it may be inferred that it is the Khalistan Liberation Force.
On 27 October 2014 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The applicant applied to the Tribunal for review of that decision.
The applicant attended a hearing conducted by the Tribunal on 16 March 2016. At the hearing, the applicant gave the Tribunal a number of documents including affidavits, statements and media extracts. Amongst other things, the statements provided by the applicant to the Tribunal claimed that the applicant had been arrested a number of times by the police. The applicant also gave evidence that when he was learning photography he sometimes photographed members of the AISSF.
The Tribunal affirmed the delegate’s decision.
Tribunal’s decision
The Tribunal rejected the claim that the applicant was arrested in India. It accepted that he may have been questioned about his knowledge of the AISSF, and that his photographic account of the members or associates of the AISSF may have been sought after by police. The Tribunal also accepted that the applicant joined the AISSF in October 2007. However, it did not accept that whatever questioning or other incidents that the applicant may have suffered caused him serious harm. The Tribunal did not accept that there was any ongoing adverse interest in the applicant.
The Tribunal was not satisfied that the applicant had a real chance of suffering persecution in India for any of the reasons given by him. For essentially the same reasons, the Tribunal was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia, there was a real risk that he would suffer significant harm if returned to India.
However, the Tribunal considered the applicant’s claim relating to his occupation as a photographer upon return to his home region in India. Based on this assumption, the Tribunal considered that the applicant may again photograph political groups in India and that there may be a real risk of suffering significant harm in his home region in India.
The Tribunal next considered whether the applicant had taken all possible steps to avail himself of a right to enter and reside in a country apart from Australia. In this respect, the Tribunal set out the test in the decision of the Full Court of the Federal Court in Minister for Immigration & Multicultural Affairs &Citizenship v SZRHU (2013) 215 FCR 35; [2013] FCAFC 91 as well as the decision of North ACJ in MZZXS v Minister for Immigration & Border Protection [2015] FCA 1384. The Tribunal then considered the effect of information concerning the right of Indian citizens to enter and reside in Nepal.
The Tribunal concluded that the applicant had a “relevant right to enter and reside in a country apart from Australia” and that he could also access this “liberty, permission or privilege lawfully given”. It found that there was no real chance that the applicant would be returned to India from Nepal , and there was no real chance of serious or significant harm for the applicant in Nepal. For those reasons, the Tribunal concluded that Australia was taken not to have protection obligations in respect of the applicant and therefore he did not meet the criteria for the grant of a protection visa.
Consideration
The applicant represented himself at the hearing. His submissions did not address the grounds in the application, or any other identifiable jurisdictional error in the Tribunal’s decision. Rather, the applicant made submissions concerning his fear of harm in India and Nepal. Those are matters that are irrelevant to the Court’s task. The Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error. For that reason, the applicant’s oral submissions may be left to one side.
The applicant did not file written submissions. As such, as well as considering the applicant’s grounds in his application, it is also necessary to address several matters of concern in the Tribunal’s reasons.
First ground
There are four grounds in the applicant’s application. The first ground is:
(1)The Tribunal failed to consider properly the test whether the applicant would suffer serious harm as per s91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if they asked to relocate in Nepal because Nepal is a neighbouring country and Indian police can go without visa, many AISSF members were killed in Nepal.
This ground must be rejected. It proceeds on the basis of three factual assertions that Nepal is a neighbouring country, Indian police can go to Nepal without a visa, and many AISSF members were killed there.
The first two of the asserted facts in ground one appears to have been accepted by the Tribunal (at least to the extent that it accepted that any Indian citizen could go to Nepal without a visa).
However, the critical fact for the purposes of this ground is the third assertion that AISSF members were killed in Nepal. The Tribunal did not make any finding of fact regarding that claim and the applicant did not suggest, or provide material to the Tribunal in order for it to do so. In those circumstances, the Tribunal was not obliged to consider the questions whether many AISSF members were killed in Nepal and, if so, whether that fact might support the applicant’s claim that he could be harmed in Nepal. Properly understood, this ground rises no higher than a complaint that the Tribunal should have made a different finding. As such, it does not amount to a claim of jurisdictional error and is not a complaint that supports the grant of constitutional relief.
Second ground
The second ground is:
(2)The Tribunal constructively failed to exercise its jurisdiction;
Particular:
The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of [sic] these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents. It was an error for the Tribunal to assess the applicant’s credit without first assessing whether the substance of the documents corroborated his claims.
(Emphasis in original)
The applicant provided a number of documents to the Tribunal at the hearing. The first document was a memorandum addressed to the Home Minister of India, concerning the law and order situation in the Punjab. It did not address the applicant or his individual claims.
The second document provided was dated 27 February 2016 and signed by the Office Secretary of a particular zone of the Shiromani Akali Dal[2]. Although this document predominantly addressed the general situation concerning Sikhs in the Punjab, it included a number of claims specifically relating to the applicant. One of the assertions in the second document was that the applicant had been “arrested and tortured by the police for unlimited number of times because he raised his voice for the rights and freedom of the Sikhs.”
[2] Another name for the AISSF.
The third document was an affidavit affirmed by the applicant’s father. Amongst other things, the affidavit stated:
…
Police arrested my son [name] number of times and interrogated him. He was harassed in the custody and threatened to be killed in a fake police encounter.
…
The fourth document was an affidavit by a neighbour of the applicant. This affidavit also stated that the applicant had been arrested by the Police many times and that he had been tortured in custody. The deponent of this affidavit also wrote that the police “even threatened him [the applicant] to kill” [sic].
The fifth document was an affidavit of a friend of the applicant who also said that the applicant had been “picked [sic] by police number of times and was tortured in the custody. Police even threatened him to kill [sic].”
The sixth document was an affidavit from a Councillor. The Councillor stated that the applicant had been arrested many times and was harassed by the police. The affidavit also stated that the applicant had been threatened to be killed during one of the encounters with the Police.
The seventh document was an affidavit of somebody who lived in the same locality as the applicant’s family. This deponent, too, stated that the applicant had been arrested many times and harassed by the police and was even threatened to be killed in a police encounter.
The balance of the documents provided by the applicant to the Tribunal consisted of press clippings and other general submissions concerning the situation of Sikhs in the Punjab.
In the Tribunal’s reasons it referred, at [11], to the five affidavits and numerous statements and media extracts given to it by the applicant at the hearing. The Tribunal noted that it had “materially discussed same at hearing, and included reference to that information in this decision, where it was considered material.”
It purported to deal with the content of the affidavits at [20] of its reasons:
[20]Next, in his PV application, the applicant said the “government agencies interrogated him on a number of occasions and followed his every move”. In the five statutory affidavits the applicant lodged at the hearing, it was claimed the applicant had also been arrested on many occasions. When asked why he did not include this information (about his many arrests) in his written PV application, he said he did not know what to write (though the PV application form provides instruction about this), that he was not assisted by a migration agent (which is apparently correct), and that he wanted to remain in Australia. The Tribunal is not satisfied that this is a reasonable explanation for the failure to include such relevant information. First, in his statement attached to the PV application, the applicant did say that other persons were arrested, and that he was only questioned and followed, and that he feared he would be arrested if he returned to India. I am satisfied he would have expressly included that he had been arrested in India in his PV application, if true. Second, the applicant claimed to have completed 12 years education in India, and though he said he was not one of the best students, his marks were claimed to be average. The applicant’s statement (apparently prepared by him) was typed in English. I am satisfied he could have followed the instructions on the form. Third, the applicant said that he had mainly lived and worked with Punjabi speaking people since arriving in Australia. The Tribunal understands that many persons from that cohort apply for protection in Australia. I am therefore satisfied the applicant should have had access to (at least) some of the collective knowledge within that expatriate community in Australia. At any rate, I have rejected the claim the applicant was ever arrested in India as false.
This passage raises several questions. First, it is not correct that the only matter raised in the affidavits was the claim that the applicant had been arrested on many occasions. As noted at [19] – [22] above, the affidavits also stated that the applicant had been mistreated and that he had been threatened with death by the police.
Secondly, the phrase “at any rate” in the last sentence in [20] of the Tribunal’s reasons suggests that the Tribunal rejected the claim (and only the claim) about the applicant having been arrested in India for a reason that did not appear in [20]. However, the Tribunal does not deal with that claim anywhere else in its reasons.
There are a number of ways of reading this paragraph in light of those two matters. The first is to take a very benevolent approach to the paragraph. In this way, to construe it so that the Tribunal meant to refer to the additional claims of mistreatment and death threats when it referred to arrests and to read the last sentence simply as a conclusion of the reasoning found in the balance of the paragraph.
The second way of reading paragraph [20] of the Tribunal’s reasons is to take it more literally. Read in the literal way, the Tribunal can be seen, at least on one view, to have failed to have dealt with the additional claims in the affidavits; and proceeded on the false basis that the Tribunal had elsewhere rejected the claim about the arrests in India. If the second way of reading the paragraph is the correct way, it is possible that the Tribunal fell into jurisdictional error, either by failing to properly consider the material before it or by acting irrationally.
On balance, I consider that the first of these ways is the proper way to understand [20] of the Tribunal’s reasons. First, as I have observed, the Tribunal not only referred to the affidavits in its reasons but noted that it had discussed those with the applicant at the hearing. This suggests that the Tribunal not only looked at the affidavits, but also that it had read them sufficiently to be able to ask questions about them.
Secondly, although the affidavits each claim that there were more than simply arrests, those other matters, that is, torture and death threats, were intimately connected with the arrests. The torture was said to have occurred in custody which one can reasonably presume followed from an arrest. Similarly, the threats were made by police and, without any further detail, could reasonably be presumed to have been made while the applicant was said to have been in custody following arrest.
Thirdly, in respect of the final sentence in [20] of the Tribunal’s reasons, the rejection by the Tribunal of the additional claims in the affidavits is readily explained by the balance of that paragraph. The fact that there is no other reason given for the rejection suggests that the words “at any rate” should not be read literally, but rather to be taken as no more than the infelicitous use of language. For those reasons, while the paragraph on its face might cause some disquiet, I do not consider that it reveals that the Tribunal fell into any error.
In conclusion, I am satisfied that the Tribunal considered each of the documents provided by the applicant to it and, for that reason, that the second ground in the application is not made out.
Third ground
The third ground is:
(3)The second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.
Particular:
The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.
(Emphasis in original)
Section 424A(1) of the Migration Act 1958 (Cth) (Act) imposes an obligation on the Tribunal in respect of “information that the Tribunal considers would be the reason, or a part of the reason” for its decision. If there is no such information, then the failure by the Tribunal to give a written invitation under s.424A or to follow the procedure under s.424AA of the Act does not amount to an error of any description. No such information is identified in the application.
Careful analysis of the material before the Tribunal and its statement of reasons reveals that the only information that might fall within s.424A(1) was either:
i) information given to the Tribunal by the applicant; or
ii)information that might be described as general country information, that is, information that was not specifically about the applicant.
Both types of information are excluded from s.424A(1) of the Act by the operation of s.424A(3). For that reason, there was no obligation on the Tribunal under s.424A(1) and the ground must be rejected.
Fourth ground
The fourth ground is:
(4)The Tribunal member failed to consider an integer of the Applicant’s claim, in failing to consider whether or not a AISSF (regardless of their past persecution) in India was at risk of harm from radical Hindus and police not able to access effective protection.
The applicant did not claim that he might be at risk of harm from radical Hindus, and such a claim did not arise clearly on the material. For that reason, no error arose from the Tribunal’s failure to deal with it: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1; [2004] FCAFC 263.
On the other hand, the applicant did claim that he feared harm from the police and the Tribunal did deal with that claim. It did so initially by finding that there was no real chance that the applicant would be harmed in the future as he claimed. The Tribunal accepted that the applicant might continue to take photographs and face a real chance of harm from the police for that reason. That conclusion led the Tribunal to consider whether s.36(3) of the Act operated in the circumstances of the case. That is, broadly speaking, whether the applicant had the right to enter and reside in another country where he would not be harmed, and from which he would not be sent back to India. Understood at that level, the Tribunal’s reasons do not suffer from the error identified in ground 4 of the application. However, the Tribunal’s reasons are not entirely clear and their lack of clarity raises real questions about whether or not they reveal that the Tribunal revealed another type of error.
Further issues
Two further potential issues arise:
i)whether the Tribunal ought to have considered whether the applicant might take photographs of political figures in Nepal and, if he did, whether he might face a real risk of harm there for that reason; and
ii) whether the Tribunal considered whether the applicant had taken all possible steps to avail himself of his right to enter and reside in Nepal.
The applicant did not raise either of these issues. The first issue was raised by me at the hearing and the Minister’s representative addressed it as best he could, not having had any notice of it. The second issue only became apparent during the preparation of this judgment. In those circumstances, the question arises whether the issues ought to be dealt with at all. The resolution of that question requires some consideration of the extent of the duty of the court where one of the parties is unrepresented.
The difficulties presented by the increasing number of self-represented litigants[3] have long been recognised by the Courts: Cachia v Hanes (1994) 179 CLR 403 at 415; [1994] HCA 14; Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 445; [1999] FCA 85 (Minogue). Whatever might be expected of the first respondent as a model litigant[4], as Murphy J recently explained in BAL v Minister for Immigration & Border Protection [2017] FCA 228 at [20], it is well established that the Court has a duty to ensure that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented. This includes an obligation to take appropriate steps to ensure that an unrepresented litigant has sufficient information about the practice and procedure of the Court, so far as is reasonably practicable, for the purpose of ensuring a fair trial. The application of that principle will depend upon the circumstances of the case. The touchstone at all times is one of fairness: see Hamod v New South Wales [2011] NSWCA 375 at [309]-[316] (Beazley JA, with whom Giles and Whealy JJA agreed) (Hamod), approved in SZRUR v Minister for Immigration & Border Protection (2013) 216 FCR 445; [2013] FCAFC 146 at [37] (Robertson J, with whom Allsop CJ at [47] and Mortimer J at [56]).
[3] Parties to litigation that appear without legal representation also referred to as unrepresented litigants or, in the United States, pro se litigants.
[4] See The Melbourne Steamship Company Ltd v Moorehead (1912) 15 CLR 333 at 342; [1912] HCA 69; Yong v Minister for Immigration & Multicultural Affairs (19997) 75 FCR 155 at 166; [1997] HCA 495.
Although these principles are mostly applied in respect of what may broadly be called procedural matters, they are not necessarily limited to those matters. In Rajski v Scitec Corporation Pty Ltd (unreported, Court of Appeal, NSW, No 146 of 1986, 16 June 1986) (Rajski), one of the decisions referred to in Hamod, Mahoney JA observed:
Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done
The Court in Minogue referred to that observation at [28] and noted that it (and an earlier passage in Rajski of Samuels JA) had been referred to in a number of subsequent cases and that nothing in the later decision of the High Court in Neil v Nott (1994) 68 ALJR 509; [1994] HCA 23 was inconsistent with it.
In light of the approach identified in the authorities, a Court may identify substantive issues in the proceedings that have not been articulated by an unrepresented litigant. Indeed, it is not unknown for Courts to identify issues even when a party is represented by competent counsel: Minister for Immigration & Citizenship v CZBP [2014] FCAFC 105 at [81]. Whether a court can, or ought, do so is to be determined by whether fairness requires it. That requires consideration not only of the interests of an unrepresented litigant, but the interests of all the parties.
To be clear, it is no part of this Court’s duty, in every case, to minutely examine the material before it to determine whether there is some identifiable argument that might be raised by or on behalf of an unrepresented litigant. If that were the case, the Court would, in effect, be acting as an advocate for that litigant and so lose the neutrality that is required in order properly to administer justice between the parties. The fine balance of what is required in order to achieve justice must be determined by the Court in the circumstances of each case. In my view, while that ordinarily does not require close scrutiny of all the material, where an arguable error does become apparent to the Court and that error has not been identified by either the unrepresented litigant or the other parties, it will usually be incumbent upon the Court to raise that argument for consideration by the parties.
Once the second issue was identified, the parties were invited to make written submissions about it. Only the Minister filed submissions in response to that invitation.
In order to understand these further issues and their resolution, it is necessary first to understand the statutory context which gives rise to them. The task of the Tribunal to review the delegate’s decision required it to determine whether he was satisfied that the applicant satisfied the criteria for the grant of a protection visa. Relevantly, that meant that the Tribunal had to be satisfied that the applicant was a person in respect of whom Australia had protection obligations, either because he was a refugee, or satisfied what is known as the complementary protection criterion: sub-ss.36(2)(a) and (aa) of the Act.
The question whether Australia has protection obligations to a person is qualified by the provision in s.36(3) which provides:
Protection obligations
(3)Australia is taken not to have protection obligations in respect of 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.
That qualification is, in itself, subject to further qualifications. The relevant qualification for present purposes is found in s.36(4) which provides:
(4)However, subsection (3) does not apply in relation to a country in respect of which:
(a)the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b)the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.
It will be seen that the qualification in s.36(4) will apply in circumstances where the applicant would meet the protection criteria in sub-ss.36(2)(a) or (aa) of the Act. That means that, when the Tribunal considers whether or not s.36(3) applies to an applicant for review in relation to a particular country, it must also consider, broadly speaking, the risk of any harm coming to the applicant if the applicant were to go to that particular country. The first issue is whether or not the Tribunal properly considered that question.
The Tribunal set out its consideration of this issue in the following paragraphs of its reasons:
[39]The Tribunal then put to him (words to the effect) that based on the country information it had seen, it may not accept he had a real chance of suffering serious harm for a Refugees Convention reason (or that he had a real risk of significant harm) in Nepal. For instance, none of the sources consulted indicated that persons with minor roles for the AISSF would suffer harm in Nepal. The applicant said he did not know anything about Nepal, and that he had been in Australia for 6 or 7 years. He then said that in Australia, persons were not “mocked” for reasons of inter alia their accent or race. However, none of the country information I have seen indicated there was a real chance of serious (or significant) harm for the applicant in Nepal, for reasons of his language, accent, race, political opinion, or any other ground. In the circumstances, the Tribunal is satisfied the applicant can access statutory effective protection in Nepal.
[40]Finally, even after considering the accepted claims cumulatively, the Tribunal is not satisfied the applicant has a real chance of suffering serious (or significant) harm in Nepal. Neither is there any issue, squarely raised by the evidence though not articulated, that has satisfied the Tribunal the applicant has a real chance of serious (or significant) harm in Nepal.
It will be recalled that the Tribunal accepted that the applicant had, in India, come to the adverse attention of the police because of photographs taken by him of AISSF supporters. The Tribunal also accepted that the applicant would return to his photographic work in his home region in India. The Tribunal does not, in the passage set out above, expose any explicit consideration of the possibility that the applicant might continue his photographic career even if he were to go to Nepal rather than to return to India. If it were the case that the Tribunal had not considered that possibility, that failure may constitute jurisdictional error.
The Minister argued that the Tribunal was not required to consider the possibility of the applicant continuing his photographic career in Nepal because the applicant never made such a claim. He also argued that the Tribunal’s other findings, as set out in the passages above, were sufficiently broad as to have encompassed the possibility that the applicant would continue his career in Nepal.
I do not accept the first of the Minister’s submissions but I do accept the second submission. The fact that the Tribunal accepted that the applicant might continue his photographic career entails an acceptance that the applicant had been a professional photographer. In considering what might occur to the applicant if he were to go to Nepal, rather than India, the Tribunal was obliged to consider what the applicant might do from day to day that could possibly lead to suffering serious or significant harm. As it had accepted that the applicant was a professional photographer, the possibility that he might continue to be one in Nepal was one that arose clearly from the material and, indeed, its own findings.
However, properly understood, the Tribunal’s reasons do reveal that the Tribunal took that possibility into account. Although it did so in a condensed fashion, its reasons in respect of this issue must be understood against that background of the findings already made by the Tribunal in respect of India. The reference, at [40] to “accepted claims” strongly suggests that the Tribunal had all of its previous findings in mind when it made the broad findings about Nepal in [39]. On that basis, it did properly consider the issue that arises from s.36(4) of the Act.
The second issue concerns the qualification found in s.36(3) of the Act. There are two steps involved in considering whether that qualification applies: first, whether the applicant has a relevant right to enter and reside in a third country; and secondly, whether the applicant has taken all possible steps to avail himself or herself of that right. While the Tribunal expressly addressed and made findings concerning the first of those steps, it did not make any express findings about the second step.
In his written submissions concerning this issue, the Minister argued that the question whether a person had taken “all possible steps” was an exceedingly low threshold. Whether or not that is so will, in my view, depend upon all the circumstances of the case. What I do accept, is that the standard set by the qualification in s.36(3) of the Act is to be taken with their literal and grammatical meaning and not to be construed as the lesser standard of “all steps reasonably practicable in the circumstances, “all reasonably available steps” or “all reasonably possible steps”: SZMWQ v Minister for Immigration & Citizenship (2010) 187 FCR 109 at [33]; [2010] FCAFC 97.
The Minister also submitted that the combination of the bare right referred to in s.36(3) of the Act, and the plain meaning of “all possible steps” is that a finding in respect of “possible steps” adverse to the applicant would be available if there was a considerable step that the applicant had not taken to gain entry to and reside in a third country. Further, such a finding would be capable of being supported by evidence that the applicant had taken no steps to avail himself of the right to enter and reside in the third country. Further still, the Minister argued that the question of whether all possible steps have been taken only arises for consideration in any meaningful way where there is evidence that the applicant makes attempts to avail himself or herself of the right to enter and reside (or at least evidence pointing to the exhaustion or unavailability of all conceivable steps).
I do not agree that the issue of whether the applicant has taken “all possible steps to avail” himself or herself of a particular right only arises if the applicant has made certain attempts. The issue arises from the terms of the legislation. It is a question that must be considered in all cases. It may well be, that where there is no evidence that the applicant has taken any steps to avail himself or herself of the right, the only reasonable conclusion will be that the qualification is satisfied. However, that does not mean that, unless an applicant has taken steps the issue does not arise at all.
The Minister’s other arguments referred to in [57] above may be accepted as far as they go. However, it is no answer to the issue before the court to say that findings are available in certain circumstances or, capable of being supported by particular evidence. Those submissions do not answer the question of whether, in this case, the Tribunal made such findings.
In addressing that question, the Minister referred to the following passage in the decision of Graham J in SZLAN v Minister for Immigration & Citizenship (2008) 171 FCR 145; [2008] FCA 904:
[57]In SZWHI v Minister for Immigration and Multicultural Affairs (2007) 95 ALD 631 Allsop J considered the position of an appellant who was a citizen of Nepal and within the purview of the treaty with India. His Honour considered, at [23], that the Tribunal had failed to address one of the elements of s 36(3): that the appellant had not taken all possible steps to avail himself of a right to enter India. He was not prepared to draw the conclusion that the failure by the Tribunal to address the relevant element could be excused because it was effectively conceded or not in issue.
[58]With great respect to his Honour, I would take the view that it was for the first appellant to satisfy the Tribunal that the criterion for a protection visa prescribed by s 36(2)(a) of the Act have been satisfied and that required the first appellant to satisfy the Tribunal that he had not been excluded from eligibility for a protection visa by his failure to take all possible steps to avail himself of a right to enter and reside in, relevantly, India.
In the following paragraph of his judgment, Graham J concluded that the statement by the Tribunal, that it was not satisfied that the applicant was a person to whom Australia had protection obligations, was sufficient to support an inference that the Tribunal was not satisfied that the first appellant had taken all possible steps to avail himself of a right to enter and reside in India.
In the passage in SZWHI referred to by Graham J, Allsop J (as his Honour then was) stated:
[23] Here, the difficulty in being satisfied that the Tribunal adequately addressed s 36(3) is that it failed to address one of the elements of s 36(3): that the appellant had not taken all possible steps to avail himself of a right to enter India. The answer to this in the submission of the first respondent was that it was not an issue. The Tribunal decision in the second last paragraph cited above reflects a discussion about living in India. It was submitted that it could be inferred that if the appellant had taken all possible steps he would have told the Tribunal that he had done so. Whilst there is some force in this argument, I am not prepared to conclude that if the Tribunal had directed enquiry to this issue the answer would be that he had not taken all possible steps to go to India. What was possible in the circumstances of the appellant leaving Nepal is a matter of which I am ignorant. This conclusion is not to contradict Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 in relation to the obligation to give reasons. The question is whether I can be confident that the failure by the Tribunal to address an element of s 36(3) can be excused because it was effectively conceded or not in issue. I am not able to draw that conclusion.
The Minister submitted that, in so far as there is any difference in principle between the judgment in SZLAN and the previous judgment of Allsop J in SZWHI, the judgment of Graham J should be followed. I do not need to come to a concluded view about that. Whether or not the Tribunal made any particular finding is a matter to be determined upon the facts of each case. The fact that Graham J came to one conclusion, has no bearing one way or the other on whether I ought to arrive at the same conclusion in respect of the Tribunal in this case. However, I ought to mention one matter, that is, that Graham J appears to have misunderstood [23] of the decision in SZWHI. In that case, Allsop J, having determined that the Tribunal had fallen into jurisdictional error was only determining the residual question of whether relief should be withheld because the Tribunal was bound by the statute to come to the conclusion that it did: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [58]; [2000] HCA 57. That explains the language in [23] with which Graham J appears to have taken issue.
That said, for the reasons that follow, I have concluded that the Tribunal did, albeit implicitly, address both of the issues that arise under s.36(3) of the Act. First, it expressly referred to the question of “all possible steps” at [31] of its reasons. Secondly, in the course of its discussion of the information concerning the availability of a right to enter and reside in Nepal, the Tribunal referred to various methods by which the applicant might avail himself of that right, including travel by air: see [33]. Thirdly, the Tribunal noted that the issue concerning Nepal had been raised at the hearing and that the applicant had said that he had not travelled to Nepal previously. Fourthly, at [39], the Tribunal stated that it was satisfied that the applicant could “access” statutory effective protection in Nepal. That word suggests not only that the applicant had a right to enter and reside in Nepal, but there were various means by which he could avail himself of such a right.
Taking all those matters into account, I am satisfied that the Tribunal did address the issue of whether or not the applicant had taken all possible steps to avail himself of the right to enter and reside in Nepal. The fact that it did not do so expressly, is readily explained by the fact that the applicant gave evidence at the hearing that he had not travelled to Nepal, as well as the fact that there was clear evidence that air travel to Nepal was possible.
Conclusion
For those reasons neither of the further issues that arose on the material establish that the Tribunal’s decision was affected by jurisdictional error. The application will be dismissed.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 16 June 2017
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