BAJ16 v Minister for Home Affairs

[2019] FCCA 1598

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAJ16 & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1598

Catchwords:
MIGRATION – Protection visa – extension of time – first applicant a practising Sikh – profile as President of Bhangra group which promotes religious and cultural activities of Sikhs – Tribunal accepts that the first applicant has a well-founded fear of persecution throughout India – whether applicants can enter and reside in Nepal – Australia taken not to have protection obligations to a person who has not taken all possible steps to avail him or herself of a right to enter and reside in another country – whether exclusion from protection obligations qualified by sub-s 36(4) of Migration Act 1958 (Cth) – applicable principles – extension granted – whether Tribunal understood claim – whether claim properly considered – constructive failure to exercise jurisdiction – application allowed.

Legislation:

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.5H, 36, 65, 414, 415, 417, 424A, 424AA, 476A,

477

Migration Regulations 1994 (Cth), Sch.2 Pt.866

Cases cited:

ACR15 v Minister for Immigration [2015] FCCA 2992

AHK16 v Minister for Immigration and Border Protection [2018] FCAFC 106

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs

(2003) 216 CLR 473

ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109

AYI16 vMinister for Immigration and Border Protection [2017] FCA 1358

AZAFJ v Minister for Immigration and Border Protection, [2016] FCA 291

Bayalkoti v Minister for Immigration and Border Protection [2017] FCA 217

BCI16 v Minister for Immigration and Border Protection [2018] FCA 851

BOZ16 v Minister for Immigration and Border Protection [2018] FCA 418

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280

Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491

CRI026 v Republic of Nauru, (2018) 355 ALR 216

CRI028 v Republic of Nauru (2018) 356 ALR 50

CTY15 v Minister for Immigration and Border Protection [2017] FCA 1354

DMI16 v Minister for Immigration and Border Protection [2018] FCAFC 95

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197

ALR 389

Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216

Frugtniet v Australian Securities and Investment Commission [2019] HCA 16

Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Ibrahim v Minister for Home Affairs [2019] FCAFC 89

Januzi v Secretary of State for the Home Department [2006] 2 AC 426

Kio v Minister for Home Affairs [2019] FCA 579

Mentink v Minister for Home Affairs [2013] FCAFC 113

Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317

Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013]

FCAFC 91

Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518

Mohammad v Minister for Immigration and Border Protection [2014] FCA 1249

MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585

MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110

MZZQA v Minister for Immigration and Border Protection [2016] FCA 584

MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133

NABE v Minister for Immigration and Multicultural Affairs and Indigenous

Affairs (No 2) (2004) 144 FCR 1

Spencer v Commonwealth (2010) 241 CLR 118

SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18

SZMFT v Minister for Immigration and Citizenship [2008] FCA 1725

SZNFR v Minister for Immigration and Citizenship [2009] FCA 851

SZRTC v Minister for Immigration and Border Protection [2014] FCAFC 43

SZSPR v Minister for Immigration and Border Protection (2013) 139 ALD 109

SZSQL v Minister for Immigration and Border Protection [2015] FCA 294

SZSZW v Minister for Immigration and Border Protection [2017] FCA 1544

SZSZW v Minister for Immigration and Border Protection [2018] FCAFC 82

SZTES v Minister for Immigration and Border Protection [2015] FCA 719

SZTOX v Minister for Immigration and Border Protection [2015] FCAFC 77

SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86

SZUBI v Minister for Immigration and Border Protection [2015] FCA 1203

SZUHM v Minister for Immigration and Border Protection [2016] FCA 1198

SZUWX v Minister for Immigration and Border Protection [2015] FCA 1389

Vella v Minister for Immigration and Border Protection (2015) 90 ALJR 89

First Applicant: BAJ16

Second Applicant: BAN16

Third Applicant: BAL16

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 900 of 2016

Judgment of: Judge A Kelly

Hearing date: 9 July 2018

Date of Last Submission: 9 July 2018

Delivered at: Melbourne

Delivered on: 13 June 2019

REPRESENTATION

Counsel for the Applicants: Ms Costello

Solicitors for the Applicants: Degama Pereira & Associates

Counsel for the Respondents: Mr McDermott

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the first respondent be amended in the title of the proceeding to Minister for Home Affairs.

2. The time fixed by s 477(1) of the Migration Act 1958 (Cth) for filing an application for judicial review of the decision of the second respondent made on 8 May 2014 be extended, now for then, to 2 May 2016.

3. The application filed on 2 May 2016 be allowed.

4. The decision of the second respondent made on 8 May 2014, RRT Case No 1211764, be set aside.

5. The matter be remitted to the second respondent to be reconsidered according to law.

6. The parties file and exchange a submission respecting costs, not exceeding two pages, within seven days.

7. The question of costs be decided on the papers.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 900 of 2016

BAJ16

First Applicant

BAN16

Second Applicant

BAL16

Third Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By an application filed 2 May 2016, judicial review is sought of a decision of the Refugee Review Tribunal (Tribunal) made on 8 May 2014 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicants Protection Visas under s 65 of the Migration Act 1958 (Cth) (Act). As the application was filed some 18 months out of time, the applicants seek an extension of time within which to commence their application.

2. In the somewhat unusual circumstances of this case, I have concluded that it is necessary in the interests of the administration of justice to grant the extension sought. 

3. The gravamen of the first applicant’s challenge to the Tribunal’s decision was that, while the Tribunal decided he had not taken all possible steps to avail himself of his right to enter and reside in Nepal,[1] it had not properly understood and therefore considered his claims and evidence respecting his well-founded fear of persecution in Nepal.[2] Had the Tribunal done so, it was submitted, it would have found that the exclusion of protections obligations effected by subs 36(3) of the Act did not apply by operation of subs 36(4). The failure to properly do so was said to constitute jurisdictional error.

   [1] Act, s 36(3).

   [2] Act, s 36(4).

4. Upon my examination of the materials I consider that the Tribunal did misunderstand the claim that was advanced, and for that reason the claim for protection was not properly considered.  Accordingly, the application for judicial review should be allowed.

Background

1. The applicants are a family unit. The first applicant is a citizen of India, aged 37 years.  The second applicant, who is also an Indian citizen, is aged 39 years and is the spouse of the first applicant.  They were married in Punjab, India, in 2003.  The third applicant, aged 11 years, is their son, was born in India and has lived in Australia since the age of six months. 

2. Before losing their work rights, the first and second applicant had worked as a taxi driver and hairdresser respectively.

3. The first applicant’s religion is Sikh.

4. The first applicant arrived in Australia in June 2008 as a dependent on his spouse’s subclass 572 Student visa.  In 2010, he was granted another visa, again as a dependent of the second applicant.  On 4 July 2011, a further subclass 572 visa application was refused.  In early 2012, the applicants sought judicial review from the then Migration Review Tribunal which decided that it had no jurisdiction to consider that application.  The applicants then unsuccessfully sought Ministerial Intervention for the refusal of the visa application.  The applicants obtained Bridging visas and in March 2012 presented the Department with a fully paid ticket to depart Australia in April 2012.

5. On 27 April 2012, the first applicant applied for a Protection (Class XA) visa.  The second applicant and the third applicant applied for Protection visas as members of his family unit. The applicants were assisted in their application by their lawyer, a registered migration agent. 

6. On 4 July 2012, the first applicant attended an interview with the Department to discuss his visa application and claims for protection.

7. On 16 July 2012, a delegate of the Minister refused the visa application. The delegate was not satisfied that the first applicant was a person to whom Australia owed protection obligations. He rejected the first applicant’s claims on the basis of their credibility and considered that the delay in applying for protection, coupled with his returns to India, undermined a finding that his fear of harm was well-founded.

8. On 7 August 2012, the first applicant made an application for review to the then Refugee Review Tribunal.

9. There were two hearings before the Tribunal: the first on 20 December 2012 and the second on 11 March 2014.  From the hearing records, it appears that the first hearing was of 2¼ hours, and the second hearing was of about 50 minutes duration respectively.

10. On 8 May 2014, the Tribunal made a decision affirming the decision of the delegate not to grant the applicants Protection visas and furnished a statement of its reasons for that decision (Reasons).  On 9 May 2014, the Tribunal provided a copy of its decision to the applicants together with a notice of information respecting their rights consequent upon the making of that decision.  The information so provided included advice as to Ministerial intervention and judicial review.[3]

    [3] Act, s 417.

11. The Tribunal recommended that the Minister consider intervening in relation to the visa applications: [88].

12. Shortly afterwards an application for Ministerial intervention was made, supported by a number of documents, including a submission by the applicant’s lawyer dated 3 June 2014.  The application for Ministerial intervention was also supported by the applicants’ local member of Parliament who noted that the second applicant’s sister, an Australian citizen, was to represent Australia at the Commonwealth Games. 

13. On 7 March 2016, Ministerial intervention was declined.

Procedural history

1. On 2 May 2016, the applicant filed an application for judicial review of the Tribunal’s decision and sought an extension of time to do so.[4]

   [4]             Act, 477.

2. By a Response filed on 13 May 2016, the Minister contended that the application for judicial review did not establish any jurisdictional error in the Tribunal’s decision, and stated that the applicant had not provided an explanation for the delay or why an extension should be granted.

3. The first applicant filed three affidavits in support of his application. 

   a)the first affidavit, sworn on 20 April 2016, exhibited the Reasons and the Department’s notification that Ministerial intervention had been declined;

   b)the second affidavit, sworn on 17 May 2016, exhibited the same documents and provided some evidence as to why the applicants had delayed in seeking judicial review. The explanation provided was, in substance, based upon the Tribunal’s Reasons that the applicant’s should apply for Ministerial intervention. The first applicant deposed to a belief that it “was reasonable and cost effective in the administration of justice to make an application to the Minister under s 417” and that the application had been made based upon the Tribunal’s Reasons at [88];

   c)the third affidavit, sworn on 19 June 2018, exhibited the 12 pages of transcript of the hearing before the Tribunal that indicates the hearing commenced at 10:39 and concluded at 11:27.  The transcript also records ‘recording malfunctions’ (at p. 5).   

Extension of time

1. By s 477(1), a 35-day time limit is fixed for the making of an application for judicial review of a migration decision. The court may extend the time for filing an application: s 477(2).

2. The power to extend time is made subject to two conditions: (1) an application has been made in writing for such an extension, and; (2) the court is satisfied that it is necessary in the interests of administration of justice to do so.  The first of those conditions was met by the request for an extension as made in both the application for judicial review and the amended application.  The second condition is in issue. 

3. The discretion to extend time for the commencement of proceedings is a deliberately broad one.[5]  It is well settled that, in the determination of whether an extension of time should be granted, the court should consider a number of factors including whether there is an acceptable explanation for the delay, the length of the delay, any prejudice to the respondent if the extension was granted, the merits of the substantive application and any other factor considered to be relevant.[6]  That said, it must be acknowledged that s 477(2) does not expressly identify any factors which might delimit or constrain the exercise of power.[7]

   [5]Mohammad v Minister for Immigration and Border Protection [2014] FCA 1249, [25].

   [6]Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348-9; SZMFT v Minister for Immigration and Citizenship [2008] FCA 1725, [21]; SZNFR v Minister for Immigration and Citizenship [2009] FCA 851, [12]; SZSPR v Minister for Immigration and Border Protection (2013) 139 ALD 109, [16]; MZZQA v Minister for Immigration and Border Protection [2016] FCA 584, [8]; CTY15 v Minister for Immigration and Border Protection [2017] FCA 1354, [4]; AYI16 vMinister for Immigration and Border Protection [2017] FCA 1358, [10]-[11].

   [7]             SZTES v Minister for Immigration and Border Protection [2015] FCA 719, [44] (Wigney J).

4. While the discretion is broad, the court should not grant an application for an extension of time unless it is proper to do so.  That this is so brings to attention that legislative time limits are not to be ignored.[8]  Equally, the discretion conferred recognises that there will be cases in which, although no prejudice may be sustained by the Minister, the consequences for an applicant in losing a right of review are real.  In the end, the court must weigh and balance the competing considerations  for and against the favourable exercise of discretion.[9]

   [8]             Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348.

   [9]             SZUWX v Minister for Immigration and Border Protection [2015] FCA 1389, [77].

Consideration

1. The application for an extension of time was grounded upon the Tribunal’s recommendation at [88] that Ministerial intervention should be sought and that it had taken from 2014 until 2016 for that application to be considered by the Minister.  In this connection, I note that the Departmental submission to the Assistant Minister designated the ‘timing’ on the matter as warranting the classification ‘No deadline’.

Length of delay and explanation.

1. The application was filed some 18 months out of time.  It has been held that where an extension is sought following a lengthy delay before making the application, exceptional circumstances would generally be required to be properly explained in order for the court to be satisfied that it was necessary in the interests of justice to grant that relief.[10]  Furthermore, it has been held that when jurisdictional writs are sought in the High Court, and more than a year has elapsed since expiry of the time limit fixed for such proceeding, those time limits may be rigidly applied unless exceptional circumstances are shown.[11]  Satisfaction that it is necessary in the interests of justice to extend time is a precondition to the availability of the statutory power to do so.[12]

   [10]Vella v Minister for Immigration and Border Protection (2015) 90 ALJR 89, [3] (Gageler J); DMI16 v Minister for Immigration and Border Protection [2018] FCAFC 95, [23]-[24].

   [11]           Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491, [16] (McHugh J).

   [12]           SZTES v Minister for Immigration and Border Protection [2015] FCA 719, [43] (Wigney J).

2. In oral submissions, counsel for the applicant correctly accepted that delay was a factor which deserved significant weight.  However, the significant public interest in the lawfulness of administrative decisions is a matter that is also to be acknowledged.  In this context, I note that counsel for the Minister quite properly accepted that the fact the Tribunal had made a recommendation for Ministerial intervention was a matter of some significance and persuasion.

3. In such applications, one approach is to focus on the adequacy of the explanation for the delay.  This approach has been preferred on the basis that after the grant of leave the merits of the grounds can be evaluated.[13] 

   [13]           Cf MZABP (2016) 242 FCR 585, [56] (Mortimer J).

4. The Tribunal’s decision to recommend Ministerial intervention may be traced to the submissions of the applicants’ lawyers which concluded with a request for such a recommendation if the Tribunal otherwise rejected the application.  Those lawyers submitted that, outside of Australia, the applicants could not return to their home country and would face a life of great hardship as displaced refugees in Nepal.

5. In this case, although the delay was significant, in my opinion, the proffered explanation for the delay provides a significant and persuasive explanation for the applicants’ decision to adopt what then appeared to be an efficient and economical method of progressing the matter.  While the authorities recognise that the decision to seek Ministerial intervention rather than to pursue an application for judicial review may have the quality of an election and indicate acceptance that the merits of the application for review are lacking in substance, the circumstance of intervention being recommended by the Tribunal was a clear a signpost that the applicants had been given as to the course they might adopt.

6. The circumstances are somewhat unusual and I accept the explanation as warranting consideration in the application for an extension.

Prejudice

1. While the Minister accepted that he would not suffer any prejudice in responding to the application if the court were to grant an extension of time, it was submitted that the absence of prejudice was not of itself sufficient or capable of supporting a conclusion that it is necessary in the interests of the administration of justice to grant an extension.[14]

   [14]Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 349; SZSQL v Minister for

   Immigration and Border Protection [2015] FCA 294, [15]; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86, [6] (The Court).

2. Contrastingly, the applicants submitted that the question of prejudice fell for consideration in the context that by s 476A(3)(b) of the Act, no appeal lies from an order of this court either granting or refusing an application for an extension of time under s 477(2). However, it appears that an alternative, albeit quite distinct, route is supplied by s 39B of the Judiciary Act 1903 (Cth) for review of the court’s decision.[15]

   [15]Cf SZUWX v Minister for Immigration and Border Protection [2015] FCA 1389, [1] (Griffiths J); MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585, [26] (Mortimer J); AZAFJ v Minister for Immigration and Border Protection, [2016] FCA 291 [3]-[4] and cases cited (Bromwich J); SZUHM v Minister for Immigration and Border Protection [2016] FCA 1198, [24] (Farrell J).

Merits of proposed application

1. The Minister opposed the application on the substantive basis that there was insufficient merit in the proposed grounds of review as to warrant an extension of time.  Expressed in positive terms, if the court concluded that there was no arguable, or sufficiently arguable, merit to the substantive application, it would not be necessary in the interests of the administration of justice to exercise the power to grant an extension.

2. As the authorities confirm, if an extension of time is to be granted, the court must be satisfied that it is necessary in the interests of justice to do so.[16]  Whether an extension of time should be granted will depend upon the particular circumstances of each case.[17]

   [16]SZSZW v Minister for Immigration and Border Protection [2018] FCAFC 82, [27] (Collier, Wigney and Gleeson JJ); MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110, [38] (Tracey, Perry and Charlesworth JJ).

   [17]Mentink v Minister for Home Affairs [2013] FCAFC 113, [32]-[38] (Edmunds, Griffiths, Pagone JJ).

3. In MZABP v Minister for Immigration and Border Protection,[18] the Full Court endorsed statements by Mortimer J that the approach to be taken to a preliminary examination of the merits of the substantive application necessarily involved recognition that the grounds had not been as fully considered, developed and argued as if on a final hearing and, accordingly, that it was not a function appropriate to the exercise of discretion to grant an extension of time to undertake a fuller consideration of the merits of the substantive claim.  Mortimer J’s reasoning is instructive:[19]

   . . .  it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless.... If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see . . . Jackamarra v Krakouer[20]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).

   The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” . . .

   The Full Court endorsed her Honour’s use of the criterion ‘reasonable prospects of success.’  This criterion is akin to that which is employed in an application for summary judgment where the court is authorised to dismiss a claim or defence where it is considered to have no reasonable prospects of success.[21]  Relevantly, it is a criterion that is long accepted as posing a lower threshold than that to be applied on the final determination of the issues in a proceeding.

   [18]           [2016] FCAFC 110, [38].

   [19](2015) 242 FCR 585, [62]-[63].

   [20](1998) 195 CLR 516 [7]-[9].

   [21]           cfSpencer v Commonwealth (2010) 241 CLR 118.

4. Thus, in the determination of whether it is necessary in the interests of the administration of justice to grant an extension of time, the merits of the application should be evaluated at a reasonably impressionistic level such that the court is satisfied to a degree of confidence whether the grounds of review are arguable, reasonably arguable, sufficiently arguable or plainly hopeless.  Further, in the consideration of whether the grounds of an application are sufficiently arguable, the court is not confined to a consideration of the proposed grounds of review but must also engage with the Reasons of the Tribunal to consider whether the grounds are of any substance: see SZSZW v Minister for Immigration and Border Protection at first instance[22] and on appeal;[23] Kio v Minister for Home Affairs.[24]   The discretion is deliberately broad. 

   [22][2017] FCA 1544, [14]-[17] (Perry J) citing MZABP; DMI16 v Minister for Immigration and Border Protection [2017] FCA 1179, [33]-[36] (Robertson J).

   [23] [2018] FCAFC 82, [26]-[27] (The Court).

   [24] [2019] FCA 579, [4], [10].

5. Having regard to the conclusion I have reached, I am satisfied, at an impressionistic level and with a degree of confidence, that the applicants’ single ground of review was arguable.  The reasons for that conclusion are below.  The parties agreed that if an extension was granted, their submissions should be considered on the basis that the application was being determined as on a final hearing.

Ground of review – failure to consider claim

1. The application contained a single ground of review which reads:

   The Tribunal constructively failed to exercise its jurisdiction, or alternatively, made an error of the kind described in Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473.

   Particulars

   a)Having accepted that the applicant was owed protection obligations, the Tribunal failed to evaluate the circumstance specific to the applicant underlying those claims when assessing whether the applicant was not entitled to a protection visa by reason of s 36(3) of the Migration Act 1958 (Cth).

   b)In particular, having accepted that “even after having relocated to another part of India, he will come to the attention of his enemies and suffer persecution as a consequence”, the Tribunal failed to consider whether the applicants enemies may persecute the applicant in Nepal.

   c)The Tribunal reasoned in “classed based” manner, relying on country information which described the situation in Nepal at a very high level of generality, without descending into the detail of the applicants circumstances as they were advanced.

2. The applicants correctly submitted that the Tribunal had found that the first applicant faced a well-founded fear of persecution in India and that he could not relocate within India. 

3. The applicants submitted that the Tribunal’s error in finding that “s 36(4) is not enlivened in this case” was that it failed to properly consider the first applicant’s claims and evidence.  The applicants relied upon the claim that the first applicant was at risk of harm from Hindus and anti-Sikh elements.  The applicants relied upon the Tribunal’s reasoning as exposing that it had not properly considered his claims to fear harm from Hindus and anti-Sikh elements.  It was submitted that:

   a)the Tribunal’s focus was on the risk of harm from those outside of Nepal without any or any adequate regard from the risk posed by those within that country: eg, [72]-[74];

   b)the Tribunal’s consideration of the first applicant’s religious practice was too narrowly focussed upon his ability to practise his faith without regard to the broader community based pursuit of his activities which he carried out in the promotion of his faith: eg, [77]; 

   c)the Tribunal erroneously considered that the evidence from the Sikh Gurdwara in Nepal undermined the first applicant’s claims, because the evidence indicated that there were organisations within Nepal associated with the practice of the Sikh religion: eg, [77];

   d)the part of the Tribunal’s reasoning which found that it did not accept the characterisation of the first applicant’s claims that he faced harm from Hindus was nonsensical: [74]; and

   e)the Tribunal’s failure to properly consider the first applicant’s claims was also demonstrated by its use of generic country information which identified that various religious groups in Nepal co-existed peacefully: [78].

4. It was also said that the Tribunal had failed to consider the first applicant’s claim that the ability for persecutors to easily cross into Nepal (because, the border was, in effect, porous) was a risk that the Tribunal failed to recognise, and was a risk that could not be eliminated.

5. In oral submissions it was said on behalf of the applicant's that the Tribunal had not considered the claim that it would be reasonable to expect the first applicant to continue to be an active and leading member of the Sikh community in Nepal and, with this heightened profile, at ongoing risk of harm from Hindu extremists.  It was submitted that as a Sikh, the first applicant would continue to practice his religion and to be an active member of the Sikh community.  However, the Tribunal had, in substance, merely referred to country information which addressed the issue of religion at a high level of generality without descending to a consideration of the actual claim made by the first applicant as to the basis of his fear of persecution in Nepal.   Thus, it was said that to have reasoned in this manner failed to engage with and properly assess the claim that had actually been made.

6. Counsel for the Minister submitted that regard must be had to the Reasons globally, and upon a fair reading, it was apparent that the Tribunal had properly understood the claim that was being made.  This submission required examination of the Reasons as a whole.  Before doing so, it is convenient to consider the first applicant’s claims in a little detail and the Tribunal’s treatment of the matter.

First applicant’s claims

1. In his application, the first applicant stated that he had left India as there had been an attempt on his life and he had received death threats.  He added that he departed to accompany his wife who wished to pursue further study in Australia.  In terms of the basis for a well-founded fear of harm, the applicant stated that he had been targeted as the leader of a ‘club’ which promoted cultural activities and the Sikh religion. His application revealed that his brother was residing in Australia.

2. In a statement attached to his application, the first applicant described the critical situation of Sikhs in India and that their murder was, in effect, government sponsored.  He stated that many Sikhs had left their religion on account of the threats that they received but that he decided to work for his culture and established an institution described as the Punjabi Bhangra Club, which became somewhat famous over time.  The first applicant described how, following the conclusion of a cultural program at an unnamed palace, shots had been fired at him and that despite the perpetrators being identified, police had taken no action.  The first applicant stated that he received further threats and then decided to leave India.  The first applicant further stated that upon returning to India in 2010 to attend the wedding of his brother in law, he had received further death threats. 

3. The first applicant also stated that his father had concealed other death threats that had been made against him, and that the assailants had entered his father’s house and tortured him.  The first applicant submitted a translated version of a police statement that his father had made respecting this incident together with further statements that were corroborative of the his claim to a well-founded fear of harm.  In addition, the first applicant’s father made an affidavit that was supportive of his claims.  A letter from the Ministry of Youth Affairs attested to the number of occasions on which the first applicant had been honoured at a national level for the performances and contributions of his club.  Photographs were provided as evidencing these performances and awards.

4. In a written submission, the applicants’ lawyers acknowledged that by operation of sub-s 36(3)-(5) of the Act, a person would not be entitled to protection if he or she had a right to enter or reside in a safe third country. It was submitted that the first applicant had no such right and there was no evidence to the contrary. The submission also addressed the basis on which the first applicant contended that his fear of harm was well-founded and that it was clear there was no support from Indian authorities for the protection of members of the Sikh minorities. The claim to a well-founded fear of persecution was articulated as:

   As a Sikh person being persecuted because of his status as Sikh, race and religion are applicable Convention reasons.  Further, as a member of the Sikh community, he is being singled out for persecution because of his membership of that group.  Last, the conflict between the Sikh community and the extremists has a political element which is integral to the conflict.

   The submission concluded by addressing internal relocation and drew attention to authorities which affirmed that consideration of relocation required the Tribunal to have regard to an applicant’s particular circumstances, the impact of relocation, and whether it was reasonable in the sense of practicable for the person to relocate.

Tribunal hearings

1. On 27 November 2012, the applicants were invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in their case.  Each applicant indicated their intention to attend the scheduled hearing and requested the assistance of an interpreter.  They furnished a large volume of material in support of their claims. 

2. The first hearing was scheduled for 20 December 2012.  The applicants attended (together with the first applicant’s brother), and were assisted by an interpreter.  The applicants supplied further country information to the Tribunal immediately after the first hearing.

3. Nothing appeared to occur in relation to the application in 2013.

4. On 10 February 2014, the applicants were informed that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone.  The applicants were invited to a further hearing scheduled for 11 March 2014.  The Tribunal’s invitation contained no further intimation as to the issues that were to receive consideration at the second hearing.  In particular, it contained no clear particulars of any information that might be considered as the reason or part of the reason for affirming the decision under review.[25]

   [25] Cf Act, s 424A(1).

5. On about 27 February 2014, the applicants engaged a lawyer to assist them at the second hearing.  A request was made to postpone that hearing.  On 7 March 2014, the Tribunal contacted the applicants’ lawyer to advise that the hearing would proceed but that the lawyer could make a post-hearing submission. 

6. The applicants appeared at the second hearing, and were assisted by an interpreter and their migration lawyer.  Having regard to the ground of review, it has been useful to examine the transcript of the second hearing.

7. The second hearing began with the Tribunal member apologising for the delay in finalising the claim and advising of unspecified legal developments that had been unfolding in relation to ‘relocation’. When it was said that a new issue had arisen, the interpreter asked for clarification. The Tribunal’s response was that the new issue was whether the applicants had a right to enter and reside in another country. Then followed a brief reference to ss 36(3) and 36(4) of the Act and the following statement was made:

   The person has the right to enter and reside in another country whether permanently or temporarily; the person has not taken all possible steps to avail himself of that right; the person does not have a well-founded fear of persecution, and also the person does not face a real risk of significant harm in that other country.  Now, the reason that I’m raising this with you is that it would appear that you have the right to enter and reside in Nepal pursuant to the 1950 treaty of peace and friendship between India and Nepal.

   This appears to have been the first occasion on which the Tribunal had raised issue of relocation to Nepal with the applicants.

8. When the interpreter asked for that statement to be repeated, the Tribunal responded: “A well-founded fear of refoulement.  It’s a French term, . . .”  When a request was made for that statement to be repeated, the Tribunal responded with a reference to the 1950 Treaty of Peace and Friendship (Treaty) between India and Nepal and the text of Art 7 of that Treaty was read to the applicants. 

9. By reference to country information the Tribunal explored the practicalities of securing entry to Nepal and observed that “if you are crossing at a land border all you need is some ID, photo ID and in many cases they don’t even ask for that.”  It was also noted that the first applicant held a current passport.  The Tribunal then stated that it was reasonably satisfied of the first applicant’s claim to be at risk of harm in India but wanted to ask specific questions of the first applicant and give him “the opportunity to say anything about why you might be at risk of being harmed in Nepal or sent back to India if you go there.” 

10. The first applicant stated that he had been to Nepal on one occasion.  He also stated that since entry to Nepal was not difficult, persons could target him in Nepal and attack him at any time.  Furthermore, the first applicant said that he had always been active in the Sikh community and that in Nepal there were no organisations that would be able to support him.  He added that the Nepalese language and economy were also very different. 

11. The Tribunal referred to country information and was unable to find any examples of Indians residing in Nepal being targeted for political or business reasons, but acknowledged that it was quite possible someone could continue their dispute with the first applicant and follow him to Nepal.  In this context, the Tribunal stated that the issue for assessment was whether there was a real chance of that occurring.  Following a recording malfunction the Tribunal asked whether there was anything further that the first applicant wanted to say.  The first applicant replied that he was sure someone would go to Nepal to kill him.  With reference to anti-Sikh organisations, the first applicant pointed to the comparative difficulty of entry to Australia and referred to terrorism in Nepal.  The Tribunal responded by expressing doubt as to whether it was difficult to enter Australia, and that someone determined to kill the first applicant could have travelled to Australia on a tourist visa.  The first applicant replied that it was difficult for him to address the issue further as he had been residing in Australia for the past six years.  The Tribunal stated that the first applicant could file a post-hearing submission or country information that addressed the issue.

12. When it was suggested that there was a difference between living in the midst of his enemies and living remotely from them, the first applicant maintained that there was still a risk.  The Tribunal then addressed country information that there was a long established and vibrant Sikh community living in Nepal who were free to practise their religion.  The first applicant replied:

    That’s not the issue, that I can practice, I am practising here as well.  The issue is I’m not sure about this country and anybody can come and kill me over there.

    The topic addressed by this answer was not explored further.

13. The Tribunal moved to the question of whether the first applicant was at risk of being returned by the government of Nepal to India.  The first applicant replied that he had no idea what would occur.  He reiterated that a border crossing into Nepal was not difficult and that his enemies could easily go there to kill him.  He added that there had been no threat to his life in Australia in six years, his brother was a permanent resident and his sister-in-law was an Australian citizen who had represented her country. 

1. When the first applicant stated that he did not know a single person in Nepal, the Tribunal queried his earlier answer that he had visited his brother-in-law there.  The first applicant confirmed that the had visited Nepal and stated that his brother-in-law had been there as a tourist.  The first applicant was then invited to provide country information that evidenced attacks by Indians in Nepal on Indians who were resident in that country.  The Tribunal spoke with the applicants’ lawyer, confirmed that the issue of a well-founded fear of harm in India had been satisfied and allowed a period of four weeks to provide a post-hearing submission. 

2. As somewhat of an aside, the Tribunal then asked the second applicant if she had anything to add.  The second applicant confirmed her husband’s evidence and asked the Tribunal what she would do in Nepal if her husband was attacked and what would become of her child.  The first applicant stated that they had had no intention of coming to Australia but had done so after being attacked in 2008.  He said he had been attacked the day that he had landed in India and that 70% of the Punjabi population was Sikh.  The first applicant stated that if he was at such a risk of harm in India, he could not feel safe in Nepal where Sikhs represented only 2% of the Nepalese population.  The Tribunal agreed that the number of Sikhs in Nepal was very small but responded:

   The question is not a ratio of Sikhs to other Hindus or to Hindus or to other religions, the question is: is there a real chance to that people you’re fearful of [will] follow you there and harm you?

   The first applicant’s immediate response was:

   So that’s what I’m saying.  If we can be attacked on the same day when we landed, anybody can go there to Nepal . . .

   While the Tribunal member responded that he ‘understood’, I note that the issue of Hindus had not been raised to that point at any time.   The first reference to Hindus appears at p. 11 of that 12-page transcript.  The hearing concluded with the Tribunal repeating that the applicants might furnish a further submission and that, if the application was refused, it could still recommend Ministerial intervention.

3. On 8 April 2014, the applicants’ representative filed a post-hearing submission addressing the right of residence in Nepal and the risk of religious freedom persecution in Nepal and did so in the context of ss 36(3) and 36(4) of the Act. Attached to the submission was various country information respecting the implications of the applicants’ right to residence in Nepal. The submission stated in part:

   [The first applicant] fears that he and his family will also be subject to persecution or significant harm in Nepal based on their religion.

   The submission addressed the first applicant’s profile and his heightened risk of persecution stating:

   [The first applicant’s] asylum claims in India arise from his role as a leader in the Sikh community and consequently harm from Hindu extremists in India.  In Australia [the first applicant] has continued to be an active member of the Sikh community.  Based on his commitment to his religious convictions, it is reasonable to expect [him] to continue to be an active and leading member of the minority Sikh community in Nepal.

   We submit that there is a risk that Hindu extremists in Nepal, like those who would harm Mr Sindhu in India, would also harm Mr Sindhu in Nepal and that because of his past profile that this risk will (sic) increased. We refer the Tribunal to the directives of the UN Handbook which accepts that due to a higher public profile a person’s opinions are more likely to come to the notice of authorities.

   80. Holding political opinions different from those of the Government is not in itself a ground for claiming refugee status, and an applicant must show that he has fear of persecution for holding such opinions. This presupposes that the applicant holds opinion not tolerated by the authorities, which are critical of their policies or methods. It also presupposes that such opinions have come to the notice of authorities or are attributed by them to the applicant. The political opinions of a teacher or writer may be more manifest than those of a person in a less exposed position. The relative importance or tenacity of the applicant’s opinions – in so far as this can be established from all the circumstances of the case – will also be relevant.[26]

   The relative importance or tenacity of the applicant’s opinions’ is relevant in this case, [he] has a fervent commitment to the Sikh religion and community rights. (Emphasis added)

   [26]Citing HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS Under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees.

4. In substance, the post-hearing submission confirmed that the first applicant had a heightened profile and risk of harm in Nepal by reason of his fervent commitment and adherence to the Sikh religion, his active involvement of the promotion of his religion in the community and that his profile would place him at risk of persecution.  The submission explained that in Nepal, the applicants could not claim protection from the Indian consular authority, and that they would become displaced refugees in that country.  The country information supplied with the post-hearing submission included:

   a)a letter by the head and chief educator of a Nepalese based Sikh community organisation, Gurdwara Guru Nanak Satsang; and

   b)a report from the US Department of States concerning religious rights in Nepal (US report).

5. The letter from Gurdwara Guru Nanak Satsang provided a history of a minor Sikh settlement in Nepal from 1950-1960 and the deterioration of their situation with violent attacks by Maoist terrorists on those families and their businesses.  The letter attested that the Nepalese police had not been able to ensure their safety and that curfews had been imposed.  The letter further stated that of the 500 families who had originally settled in Nepal, some 25-30 families remained and they had not been able to secure citizenship unless they had changed their religion.  The letter provided a history of litigation concerning land that had been granted to the Sikhs but repossessed with an ongoing risk of clashes with Hindus.  The letter concluded:

   In the end this can be said that the Sikhs are feeling insecure in Nepal due to Maoists (terrorism), Hinduism and under political pressure and Sikhs have a fear of life at times.  Due to the fear of rioting and incidents like curfews the Sikh youngsters are going overseas to save their lives and for a better future.

6. The US report, prepared in 2012, was arranged by way of an executive summary and in four further sections.  The executive summary noted the 2007 interim Nepalese constitution and that in practice the government generally respected religious freedom.  It observed that the members of minority religious groups complained about the dominance of Hindus in prominent political and government positions and that this trend did not appear to have changed significantly.  The report identified complaints of societal discrimination based upon religious affiliation but that most groups appeared, generally, to coexist peacefully.  The executive summary noted that US embassy representatives discussed religious freedom with government and maintained contact with various religious groups, including Sikhs.

7. Section I of the US report, Religious demography, noted a 2011 census that identified Hindus as comprising 81.3% of the 26.5M population.  It identified other groups but did not make express mention of Sikhs.

8. Section II of the US report, Status of Government respect for religious freedom, was arranged in two parts, legal/policy framework and government practices.  Neither contained express mention of Sikhs.  However, there was a generalised statement of report of abuses of religious freedom, including of persons being placed in detention.

9. Section III of the US report, Status of societal respect for religious freedom, contained no express mention of Sikhs but included a further statement of report of abuses of religious freedom and an observation that persons of different religions generally co-existed peacefully.

10. Section IV of the US report, US Government policy, recorded that the US government had encouraged leading parliamentarians involved in drafting the new constitution to include provision respecting religious freedom.  Section IV contained no mention of Sikhs.  Overall, the US report appeared to be a high level report aimed at promoting the inclusion of religious freedom in a new constitution.

11. As stated above, on 8 May 2014, the Tribunal made a decision affirming the decision of the delegate not to grant the applicants a Protection visa and furnished a statement of its Reasons for that decision.  On 9 May 2014, the Tribunal provided a copy of its decision to the applicants together with a notice of information respecting their rights consequent to the making of that decision.  The information so provided included advice as to Ministerial intervention and judicial review.[27]

    [27] Act, s 417.

12. It is convenient to examine the ground of review and the Tribunal’s Reasons in light of applicable principles.

Protection visas

1. Section 36 is headed Protections visas that are provided by the Act.  Relevantly, an applicant for a Protection visa must satisfy at least one of the criteria in sub-s 36(2).[28]  Two of the criterion provided by sub-s 36(2) are that the applicant is a non-citizen in Australia in respect of whom: (a) Australia has protection obligations because the person is a refugee, and; (aa) the Minister is satisfied Australia has protection obligations because the Minister has substantial reasons for believing that, as a necessary and foreseeable consequence of being removed from Australia, there is a real risk that the person will suffer significant harm. 

   [28] Act, s 36(1A)(b).

2. Although the terms ‘refugee’ and ‘significant harm’ are now defined by ss 5H and 36(2A) respectively, at the time of the Tribunal’s decision, the criterion for a Protection visa provided by par 36(2)(a) of the Act required that the Minister was satisfied Australia owed the non-citizen protection obligations under the Refugees Convention as amended by the Refugees Protocol.[29]  An essential element in the definition of ‘refugee’ is that the person has a ‘well-founded fear of persecution.’

   [29]The relevant amendments took effect on 18 April 2015 but do not have a material affect upon the issues arising in this proceeding: see Ibrahim v Minister for Home Affairs [2019] FCAFC 89, [90]-[95] (The Court).

3. If an applicant for a Protection visa does not satisfy one of those criteria, the Minister must refuse the visa application.  Conversely, if the Minister is satisfied that the criteria for a visa are satisfied, it must be granted.[30]

   [30] Act, s 65.

4. Given the findings of the Tribunal it is unnecessary to examine the text of sub-s 36(2)(a) or 36(2)(aa) in any detail.  Suffice to say that those provisions provide criteria upon which a non-citizen might establish that they satisfy the principal definition of refugee or are otherwise entitled to complementary protection.  However, it is convenient to recognise that the definition of refugee in Art 1A(2) of the Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967) (Convention) provides in part that the term ‘refugee’ applied to a person who:

   . . . owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of  particular social group or  political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country . . . (emphasis added)

5. Endorsing British authority, the High Court has affirmed that while Art 1A does not speak of ‘relocation’ it expresses a causative condition that confines the scope of the concept of refugee: SZATV v Minister for Immigration and Citizenship.[31]  The internal relocation principle embodied in Art 1A is well-established.[32]  The principle operates where, within a receiving country, there is a place where a person could reasonably be expected to relocate to as to avoid or minimise the risk of harm for a Convention reason.  In such a case, the person is taken not to be a refugee where that causative condition is absent.  The absence of that condition produces the result that the person is not outside of their country for a Convention reason and thus do not fall within the definition of refugee and accordingly, are not entitled to protection.  This principle was explained by the plurality in Minister for Immigration and Border Protection v SZSCA as follows:

   If a person could have relocated to a place within his own country where he could have no well-founded fear of persecution, and where he could reasonably be expected to relocate, then the person is outside the country of his nationality because he has chosen to leave it and seek asylum in another country. He is not outside his country owing to a well-founded fear of persecution for a Convention reason. The person is not, within the Convention definition, a refugee.

   [31](2007) 233 CLR 18, [19] (Gummow, Hayne and Crennan JJ); Januzi v Secretary of State for the Home Department [2006] 2 AC 426, [7] (Lord Bingham of Cornhill).

   [32]Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317, [21] (French CJ, Hayne, Kiefel and Keane JJ). Now see par 36(2B)(a) of the Act.

6. However, the relocation principle is not at large.  In SZSCA, the plurality further held, notwithstanding that a person could safely relocate to another part of their receiving country, the causative condition required for internal relocation would not operate to exclude a person from refugee status where it was not reasonable to expect him or her to do so.[33]  So understood, the concept of internal relocation is qualified so as to permit that a person may still meet the definition of refugee where internal relocation was not reasonably practicable.  Gageler J, who dissented, considered that the principles which underlay relocation could be applied in the assessment whether a person was outside their country owing to a well-founded fear of persecution stating that:[34]

   The question which the Tribunal needed to address was whether it would be reasonable for the respondent on return to Afghanistan, to live and work in Kabul.

   Following the decision in SZSCA, the Act was amended, including by inserting ss 5H, 5J, 36(2A) and 36(2B).[35]  Those amendments are not material to the present application.

   [33]SZSCA (2014) 254 CLR 317, [26], citing UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to  the Status of Refugees 1979, [91].

   [34] (2014) 254 CLR 317, [46].

   [35]           Act No 135 of 2014.

7. In AHK16 v Minister for Immigration and Border Protection,[36] the Full Court held that when deciding if a person satisfied the definition of ‘refugee’, consideration of whether the disqualifying condition of internal relocation applied should not be approached by reference to an applicant’s objections to relocation.  Their Honours explained that the concept of objection found no “conceptual or statutory status in the statutory task of determining whether the causal element of Art 1A of the Refugees Convention is satisfied” and that to employ such objections as a checklist was inapt.  AHK16 affirms that the determination of whether a person is a refugee requires the decision-maker to consider internal relocation and that this requires consideration of whether it is reasonably practicable to do so including the impact which relocation may have. 

   [36] [2018] FCAFC 106, [29] (Mortimer, Moshinsky and Thawley JJ).

8. More recently, in CRI028 v Republic of Nauru,[37] Gordon and Bell JJ examined the principles of internal relocation and concluded:[38]

   Put in different terms, the assessment of whether a person can relocate is not answered only by reference to the risk of harm. The assessment also requires consideration of the individual circumstances of the person, and what is practicable and reasonable for that person.  As this Court said in SZATV v Minister for Immigration and Citizenship, "[w]hat is 'reasonable', in the sense of 'practicable', must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality". The practical realities must be carefully considered. And, as will be explained, the particular circumstances may include the person's family situation.

   Their Honours emphasised[39] the need to focus on whether a person could reasonably be expected to relocate to a particular location having regard to the particular circumstances of the applicant.

   [37] (2018) 356 ALR 50, [1], [22]-[26],, (Bell J agreeing on the statement of principle).

   [38] (2018) 356 ALR 50, [26] (citations omitted).

   [39] (2018) 356 ALR 50, [43]-[58].

9. An assessment of reasonable relocation is relevant to both an assessment of a claim for complementary protection and refugee protection.[40]

   [40]           CRI026 v Republic of Nauru (2018) 355 ALR 216, [49], (The Court).

10. It is well settled that internal relocation requires consideration of whether it is reasonably practicable, which brings attention to the circumstances of the individual applicant and the impact which relocation may have upon him or her or their family.[41]  For those reasons, how a decision-maker should approach the question will depend in part on the framework set by an applicant’s claims about why it is not safe and/or reasonable for him or her to relocate to a particular location.[42]

    [41]SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18, [24], 30 (Gummow, Hayne and Crennan JJ); SZSCA (2014) 254 CLR 317, [27] (French CJ, Hayne, Kiefel and Keane JJ) citing Januzi [2006] 2 AC 426, [15], [20] approving E v Secretary of State for the Home Department [2004] QB 531, [23].

    [42] [2018] FCAFC 106, [27].

11. The present application concerns the operation of subs 36(3) and 36(4) which may deny a non-citizen an entitlement to protection. Those provisions appear beneath the heading, Protection obligations and read:

    (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.

    (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.

    Sub-sections 36(3) and 36(4) were part of a series of amendments designed to counter forum shopping.

12. In SZRTC v Minister for Immigration and Border Protection,[43] Tracey and Griffiths JJ described s 36 as containing a series of cascading qualifications: with subs 36(3) operating to qualify subs 36(2) and subs 36(4)-(5A) then operating to qualify subs 36(3). Their Honours stated:

    The correct approach is, therefore, for the decision-maker to determine whether an applicant satisfies one or more of the criteria for a protection visa prescribed by s 36(2). If the answer to that question is in the affirmative it is necessary for the decision-maker then to turn to s 36(3) and determine whether or not the applicant is a person to whom that sub-section applies. If it does not, the “gateway”, created by s 36(2) to the granting of a visa remains open and there is no occasion to consider whether one or more of the qualifications to s 36(3) applies. If s 36(3) is found to apply, the decision-maker must then determine whether one or more of the qualifications contained in sub-sections (4), (5) and (5A), which ensure that Australia’s international obligations under the Refugee Convention are met, limit the operation of s 36(3) and keep the “gateway” open.

    [43] [2014] FCAFC 43, [25].

1. It is settled that in subs 36(3), the expression “right to reside and enter” is not confined in its operation to a legally enforceable right, but should be construed as extending to a liberty, permission or privilege that is lawfully given.[44] An important part of the context in which s 36 is to be construed is that the obligations of which it speaks are obligations owed between signatories to the Convention, rather than to individual persons. The Convention is not part of the domestic law of Australia.

   [44]Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91, [56], [89], (Buchannan J, Tracey, Flick, Robertson and Griffiths JJ agreeing).

2. Instead, subs 36(3) operates as a deeming provision so that Australia will not owe protection obligations in the circumstances where it applies.[45]  The relevant circumstances are that a non-citizen has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently, in a country other than Australia.  The existence and source of the ‘right’ is a matter of evidence.[46]

   [45]           SZRTC v Minister for Immigration and Border Protection [2014] FCAFC 43, [27].

   [46]           SZTOX v Minister for Immigration and Border Protection [2015] FCAFC 77, [38], [42].

3. Textually, it may be noted that subs 36(3) speaks of a “right to enter and reside in” a country other than Australia. It does not speak of relocation. In SZUBI v Minister for Immigration and Border Protection,[47] McKerracher J held that the reasoning in SZSCA on the application of the internal relocation principle had no application to s 36(3). To similar effect, in BCI16 v Minister for Immigration and Border Protection,[48] Banks-Smith J held that “[n]othing in s 36(3) requires that a person be entitled to protection or otherwise to be recognised as a refugee in the relevant third country. Contrastingly, the reasoning in SZSCA appears to authorise the application, by analogy, of internal relocation principles on the question of whether a person has a well-founded fear of persecution even where internal relocation is not in issue.[49] Parity of reasoning may suggest that similar analogical reasoning was equally available in respect of subs 36(4). However, as the issue was not raised, I do not decide it.

   [47] [2015] FCA 1203, [27].

   [48] [2018] FCA 851 [37].

   [49] (2014) 254 CLR 317, [29] (plurality), [46] (Gageler J).

4. By way of overview, par 36(2)(a) and 36(2)(aa) provide eligibility criteria for a Protection visa, while subs 36(3) qualifies and may deny the application of those criteria. Sub-section 36(4) contains an exception to that qualification with the result that, when it applies, subs 36(3) has no operation. If a decision-maker chooses to address the question whether a non-citizen may not be owed protection obligations on the ground that s 36(3) may apply, that question cannot be addressed without giving consideration to the exception created by s 36(4).[50]

   [50]SZRTC v Minister for Immigration and Border Protection (2014) 224 FRC 570, [25] (The Court).

5. Stated in terms applicable to the present case, the first applicant was found to satisfy the criterion in s 36(2)(a). At that level he appeared entitled to the protection obligations afforded by the Act unless the qualification to those protection obligations applied for the reason that he was a person who had not taken all possible steps to avail himself of a right to enter and reside in Nepal: s 36(3). Moreover, the first applicant was entitled to contend that the qualification created by s 36(3) did not apply to his case if he had a well-founded fear of persecution in Nepal or there were substantial grounds for believing that as a necessary and foreseeable consequence of availing himself of that right, there was a risk that he would suffer significant harm in Nepal: s 36(4).

Judicial review

1. Where an applicant for a Protection visa lodges a valid application for review, the core function of the Tribunal is to review that decision.[51] In conducting the review of a delegate’s decision, a Tribunal may exercise all the powers and discretions conferred by the Act upon the Minister.[52]  The conduct of review by a Tribunal is not akin to adversarial litigation where issues are joined.  While the applicant puts before the Tribunal whatever material he or she may consider to be of assistance to the determination of their claim, it is for the Tribunal to make findings of fact which it considers to be necessary for it to make its decision.[53] 

   [51] Act, s 414.

   [52] Act, s 415(1).

   [53]           Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518, [73].

2. In conducting a merits review, a Tribunal is required to examine the application, claims and arguments afresh – that is, with fresh eyes.[54]  The Tribunal must consider for itself the material before it and make its own findings based on that material.[55]  For those reasons, the Tribunal’s core function is not discharged by simply asking whether the facts of the instant application fall within those considered in an earlier application or by simply adopting the delegate’s decision.[56]  There must be a genuine consideration of the claims and evidence before the decision-maker. 

   [54]           MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133, [60].

   [55]Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, [32]; MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133, [58]; ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109, [71].

   [56]           ARG15, [71]; ACR15 v Minister for Immigration [2015] FCCA 2992, [26].

3. The jurisdiction conferred on the Tribunal requires that it re-exercise the functions of the original decision-maker and arrive at the correct or preferable decision on the material before it.[57]  However, the Tribunal is not at large and is “subject to the same general constraints as the original decision-maker and should ordinarily approach its task as though it were performing the relevant function of the original decision-maker in accordance with the law as it applied to the decision-maker at the time of the original decision.”[58]

   [57]Frugtniet v Australian Securities and Investment Commission [2019] HCA 16, [14] (Kiefel CJ, Kean and Nettle JJ); MZZZW, [56]-[58].

   [58]           Ibid, (citations omitted).

4. In the discharge of its core function, the Tribunal is required to correctly construe and consider each claim made by a visa applicant.[59]  A failure to do so will be characterised as a constructive failure to exercise jurisdiction that may justify relief by way of constitutional writs.[60]

   [59]Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; NABE v Minister for Immigration and Multicultural Affairs & Indigenous Affairs (2004) 144 FCR 1, (The Court).

   [60]BOZ16 v Minister for Immigration and Border Protection [2018] FCA 418, [10] (Allsop CJ) citing Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, [24]-[34] (Gummow and Callinan JJ), [88], Kirby J).

5. In NABE v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (No 2),[61] the Full Court held that a failure by a decision-maker to deal with a claim raised by the evidence and contentions before it, which, “if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error.” Black CJ, French and Selway JJ explained that if a Tribunal made an error of fact in misunderstanding or misconstruing a claim that had been advanced and based its conclusion in whole or in part on that misunderstanding, this was tantamount to a failure to consider the claim. Their Honours endorsed[62] the analysis in Htun v Minister for Immigration and Multicultural Affairs,[63] that a failure to consider all claims was to be distinguished from erroneous fact finding.

   [61] (2004) 144 FCR 1, [63].

   [62] (2004) 144 FCR 1, [57].

   [63] (2001) 233 FCR 136, [42], (Allsop J, Spender J agreeing).

6. In short, the Act makes clear that the statutory task requires the decision-maker to consider that claims that are made. It follows that to misconstrue or misunderstand those claims is to fail in that task. While a Tribunal’s reasons should not be read with an eye keenly attuned to error, it is necessary that the decision-maker has properly understood the claims that the applicant has made. If that has not occurred, the Tribunal cannot have properly conducted its core function of review.

7. In the result, a failure to properly understand the claim that is being made, for example, by placing a wider or misdirected focus upon the claim, may support a conclusion that the Tribunal has misconstrued the actual claim being made.[64]  In BOZ16 v Minister for Immigration and Border Protection[65] Allsop CJ granted relief in circumstances where a Tribunal had erroneously employed a broad construct of the reference to ‘Sri Lankan authorities’ generally which served to distract attention from the actual claim that was being made, the applicant’s claim concerned fear of harm from  paramilitary groups. 

   [64]BOZ16 v Minister for Immigration and Border Protection [2018] FCA 418, [14]-[15], [61], [69] (Allsop CJ).

   [65] [2018] FCA 418, [14]-[15], [61], [69] (Allsop CJ).

8. The reasoning in BOZ16 finds a parallel in the principle that jurisdictional error may be found where an administrative decision-maker reasons in a way which demonstrates that it has failed to address the correct question.  It is of some importance to examine that concept.

9. For a Tribunal to ask whether a person would  be able to live discretely if returned to their receiving country in a way that would serve to avoid or minimise the risk of harm involves a failure “to consider the question it had to decide – whether the applicants had a well-founded fear of persecution.”[66]  The focus must be on that question.

   [66]Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, [39] (McHugh and Kirby JJ), [82], [88] (Gummow and Hayne JJ); SZSCA (2014) 254 CLR 317, [15] (French CJ, Hayne, Kiefel and Keane JJ).

10. Equally, a Tribunal will commit error in the analysis of whether a person has a well-founded fear of persecution if it adopts a generalised enquiry by reference to its a priori view of reasonable conduct as a means of avoiding a risk of the specific harm that an applicant claims to fear.[67]  To reason in that way is to enlarge the scope of the enquiry in a way which, in effect, distracts attention from the critical question.

    [67]SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18, [89] (Kirby J); SZSCA (2014) 254 CLR 317, [16]-[20] (plurality).

11. Further, as concerns internal relocation, a Tribunal will commit error by reasoning that a person could live within an area of their receiving country but that, to avoid the relevant risk of persecution, they might not be able to continue to carry on their profession in that other area.[68]  To reason in that way entails error because it involves a failure to consider what might reasonably be expected of a visa applicant if they were to return to their receiving country.  The question posed is whether the real chance of persecution relates to all areas of the receiving country.

    [68]SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18, [89] (Kirby J); SZSCA (2014) 254 CLR 317, [21]-[22] (plurality).

12. Quite apart from internal relocation, a Tribunal will also fail to address the question of whether a person is a refugee where, despite the person’s specific claim that their work requires them to travel throughout their receiving country, it reasons that the risk of harm can be avoided by not doing so.  To reason in that way is to ignore the actual claim being made.  By extension, the principles developed in relation to whether internal relocation is reasonably practicable may be of assistance as they require a comparison of a person’s living conditions in their habitual place of residence and those of the safe haven to which they may relocate.[69] 

    [69]           SZSCA (2014) 254 CLR 317, [30]-[31] (French CJ, Hayne, Kiefel and Keane JJ).

13. Again, depending upon the framework set by a person’s claims, to focus the inquiry solely by reference to the applicant’s living conditions may erroneously leave out of account the impact on the particular person and consideration that, for work reasons, it is not reasonable or practicable to return.  One way of considering the issue is whether the person is outside of their country owing to a well-founded fear.[70] 

    [70]           SZSCA (2014) 254 CLR 317, [46] (Gageler J).

14. These considerations inform the content of a Tribunal’s obligation to consider on its merits the application for the review of a visa application.

15. In the present case, of particular importance is that the obligation of an administrative decision-maker to consider mandatory relevant matters requires engagement in an active intellectual process in which each relevant matter is given genuine consideration.[71]  Where the decision-maker’s reasons give cursory consideration to the facts and circumstances which give ‘shape and substance’ to the mandatory consideration that must be assessed it may be inferred that the matter has not been taken into account or given proper or genuine consideration.[72]

    [71]Bayalkoti v Minister for Immigration and Border Protection [2017] FCA 217, [26] (Wigney J) citing TIckner v Chapman (1995) 57 FCR 451, [44]-[45] (The Court).

    [72]           Ibid.

16. In this case, in considering whether Australia did not have protection obligations because of a finding that the first applicant had not taken all possible measures to avail himself of a right to enter and reside in Nepal, it was necessary for the Tribunal to consider whether sub-s 36(3) did not apply to the case by reason that the first applicant had a well-founded fear of persecution in Nepal.  In that setting, the considerations presented by sub-s 36(4) were mandatory relevant considerations in the discharge of the core function of reviewing the delegate’s decision.[73]  Such considerations entailed a requirement that the Tribunal would correctly construe and consider each claim that had been made.

    [73]Cf Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216, [18].

Tribunal’s decision

1. As the scope of the challenge to the Tribunal’s decision was confined, it is possible to pass more briefly over some aspects of the Reasons.

2. The Tribunal’s Reasons were arranged in an orthodox manner under the following six subject headings: application for review; relevant law; background; assessment of claims and evidence, and conclusions.

3. No criticism was made of the Tribunal’s Reasons in relation to: the application for review: [1]-[3]; relevant law; [4]-[19], or; background: [20]-[28]. In addressing the relevant law, the Reasons were confined at this point to the operation of: s 65 and Pt 866 of Sch 2 of the Migration Regulations 1994 (Cth); the Refugee criterion provided by s 36(2)(a), the principles that are applicable to a well-founded fear of persecution; complementary protection afforded by s 36(2)(aa), and; the concept of a ‘family unit’. The Tribunal recognised that an applicant must be unable or unwilling because of their fear, to avail him or herself of the protection of his or her country: [14]. In its consideration of the relevant law, there was no discussion of internal relocation within India or whether the first applicant had a right to enter and reside in a country other than Australia.

4. Further, in addressing the background to the application and the issues arising on the review application, issues identified by the Tribunal were:

   a)whether, if state protection was not available to the first applicant from the harm which he feared, such harm could reasonably be avoided by his relocating within India: [27];

   b)whether, for the purposes of s 36(3), the first applicant could enter and reside in Nepal pursuant to the Treaty of Peace and Friendship between Nepal and India: [28]; see also at [65].

   Again, in identifying the issues for review, the Tribunal did not consider it necessary to assess whether relocation was reasonably practicable.

5. In its assessment of the claims and evidence, the Tribunal considered the first applicant’s claims in his visa application. In rejecting the possibility that, as a Sikh, the first applicant was a member of a particular social group, it found that the essence of his claims was that speaking out as a leader had placed him at risk of harm: [29]. The Tribunal noted that during the second hearing, the first applicant had reiterated that his speeches during his Bhangra performances had caused him to become a target (as those speeches expressed his views about Sikh culture and sought to promote Sikhism): [30].

6. The Tribunal stated at [31]:

   It was only at the second Tribunal hearing, when being asked about relocation to Nepal, that the applicant for the first time raised the more general claim that he was at risk of harm from Hindus and anti-Sikh elements.

   As appears below, the Tribunal rejected this claim which it characterised as having been made belatedly at the second hearing: [48], [49].

7. Upon consideration of country information, the Tribunal inferred that Sikhs did not face a real chance of serious harm amounting to persecution simply for practising their religion in India.  Yet it concluded that “those who pursue an assertively Sikhist political agent can face serious harm”: [34]. The Tribunal examined the credibility of the first applicant’s claims and concluded that his claims about the threat from Sikh forces were broadly consistent with country information: [46].

8. The Tribunal then addressed the post-hearing submission and observed that those submissions addressed the question of the applicants’ right to enter Nepal: [48]. However, the Tribunal appears to have employed those post-hearing submissions for the distinct purpose of assessing and rejecting a contention that the first applicant’s claims in India were founded upon a fear of persecution by extremists and authorities from the Hindu religion. Upon analysis, the Tribunal found that the persons in respect of whom the first applicant had made complaint in India, including his assailants, had been Sikhs or persons linked to the ruling Sikh-based ruling party in the Punjab: [48]-[49].

9. Contrary to the delegate’s findings, the Tribunal accepted that the first applicant’s claims with respect to past events were otherwise credible. For that reason, the Tribunal accepted the first applicant would face a real chance of serious harm amounting to persecution if he returned to his home region in Punjab for reasons of political opinion and religion: [50]-[51].

10. The Tribunal found that the State of India at present fails to provide the level of protection which its citizens were entitled to expect according to international standards: [52]-[55].

11. The Tribunal came to address the question of relocation in its consideration of the claims and evidence. At that point, the Tribunal confined its assessment to the applicants’ ability to relocate: [56]-[63]. Although the Tribunal found that first applicant might relocate within India, it concluded that he faced a well-founded fear of persecution throughout India and, as a consequence, that the issue of relocation within India did not arise: [57]. Notably, the Tribunal made an express finding that the first applicant would, but for the fear of persecution, resume his Sikh promotional and speech making activities if he returned to India: [63]. As the Tribunal found that the first applicant faced a well-founded fear of persecution throughout India, the question of whether it was reasonable for him to relocate was not addressed: [64].

1. The Tribunal turned its attention to consideration of the first applicant’s right to enter and reside in Nepal: [65]-[81]. As the heading to this section of its Reasons confirms, it did so for the explicit purpose of addressing s 36(3). It concluded that s 36(3) applied to the applicant “as a consequence of which, even if it did accept that there was a real chance of persecution for a Convention reason or a real risk of other significant harm in India, it would not be satisfied that he is a person in respect of whom Australia has protection obligations”: [81]. As noted above, the Tribunal had in fact found that the first applicant faced a well-founded fear of persecution throughout India: see, eg, [64].

2. When addressing the first applicant’s right to enter and reside in Nepal for the purposes of s 36(3), the Tribunal stated that “[t]he relevant provisions were explained to the applicant”: [65]. The Tribunal then identified the 1950 Treaty of Peace and Friendship between India and Nepal.  It identified authority[74] which confirmed that an administrative decision-maker should pay regard to the terms of the applicable treaty and evaluate whether the applicant would be granted the privileges of residence, ownership of property, participation in trade, movement and other privileges of a similar nature. The Tribunal had quoted Art 7 of the Treaty which referred to reciprocal entitlements to the nationals of each respective country to reside in the other country. It also referred to country information stating that no information had been located which indicated the existence of any practical barriers to entry by Indian citizens upon entry to Nepal: [65]-[69].

   [74]Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91 (The Court), approving V856/00A v Minister for Immigration, Multicultural Affairs (2001) 114 FCR 408, 419 (Allsop J).

3. The Tribunal concluded that the first applicant had the right to enter and reside in Nepal and found that he had not taken all possible steps to avail himself of that right for the purposes of s 36(3): [70].

4. The Tribunal then considered whether the first applicant faced a real chance of persecution or a real risk of significant harm in Nepal: [71]-[79]. The Tribunal noted the first applicant’s evidence that the Sikh religion was not practised in Nepal and that he had been a high profile target in India because of his activities. It also noted that it would be a matter of relative ease for Indians to move freely from India to Nepal so that the first applicant could also be targeted by anti-Sikh groups in Nepal as well. The Tribunal recognised that the first applicant had given evidence that his conscience would not allow him to stay silent and that he would not have the support of any Sikh organisations in Nepal: [72]. The Tribunal appeared to accept that the applicants faced the upheaval of ‘relocation to a third world country’ and that there was no evidence to suggest they spoke any Nepalese: [72]; see also [81], [87].

5. The Tribunal considered that the relevant question was whether the first applicant faced a real chance of persecution or a real risk of significant harm: [73]. In this context it recognised the first applicant’s claim that he was sure someone would go to Nepal and kill him and that: “The anti-Sikh organisations don’t do the killing themselves, they hire others to do the killings.  Such people would have difficulty entering Australia . . . whereas in Nepal there is no such restriction.” The Tribunal observed that police checks were not required for many visas and if a person wanted to come to Australia to kill him “there was no reason in principal (sic) that they couldn’t send someone here to do so”: [73].

6. In addressing the question of the first applicant’s right to enter and reside in Nepal, the Tribunal stated at [73]:

   With respect to relocation generally, the Tribunal observed that there seemed to be a big difference between facing a risk of harm a person might face from enemies when living in their midst, and he risk faced when living elsewhere, particularly in a different country altogether.

7. The Tribunal characterised the applicants’ post hearing submission as having identified that the Sikh community in Nepal was small, and considered a contention that the first applicant would face persecution in Nepal from Hindu extremists just as he has done in India.  It concluded:

   As noted above, the tribunal does not accept this characterisation of the applicant’s claims. [74]

   Those Reasons may be understood as referring to findings at [48]-[49].

8. The Tribunal considered country information and found it did not support a conclusion that the first applicant would face a real chance of serious harm or a real risk of significant harm: [75]-[79]. It found that the letter from the Sikh Gurdwara demonstrated that there was a Sikh organisation in Nepal. It considered that the letter contained outdated and exaggerated information and had regard to other country information which it had obtained, concluding the information did not support the proposition that the applicant faced a real chance of serious harm amounting to persecution: [78]-[79]. For those reasons, it was not satisfied that the first applicant had a well-founded fear of being persecuted in Nepal and found “that s 36(4) is not enlivened in this case.” 

9. The Tribunal was not satisfied that the first applicant faced a well-founded fear of refoulement by Nepalese authorities: [80].

10. The Tribunal concluded at [81] that s 36(3) applied to the present case.

11. The Tribunal concluded that it was not satisfied the applicant was owed protection obligations by Australia and affirmed the delegate’s decision.

12. In the context of addressing the submission that it should make a recommendation for Ministerial intervention, the Tribunal had regard to the circumstance that the applicants had been living in Australia for an extended period and drew attention to the Convention on the Rights of the Child. It recorded that: it had essentially found that the first applicant’s claims were credible; he was facing Convention persecution in India, but that he had a right to reside in Nepal: [87]. The Tribunal noted that although s 36(3) contained no reasonableness test, there was no evidence that the applicants spoke Nepalese: [87].

Consideration

1. The central issue arising in the application is whether the Tribunal misunderstood the first applicant’s claim.  If the Tribunal did not properly understand the claim it could not have properly considered it.  As stated above, a failure to properly consider a clearly articulated claim may mean that the Tribunal has constructively failed to exercise its jurisdiction and that its decision will be affected by jurisdictional error.

2. As the Tribunal had found that the first applicant faced a well-founded fear of persecution in India and that he could not relocate within India, those findings meant that the first applicant had taken significant steps towards satisfying the Tribunal that he had met an important criterion for a Protection visa; namely, that he was a refugee: par 36(2)(a). Subject, relevantly, to the operation of subs 36(3) and 36(4), that criterion had been satisfied and, other things being equal, the Minister was obliged to grant the first applicant a Protection visa.[75] 

   [75] Act, s 65(1)(a).

3. In my opinion, close attention to the sequence of events at the Tribunal is required in the consideration of whether jurisdictional error is established in this case.  Given the finding that the first applicant had a well-founded fear of persecution in India, it should be recognised that when the first hearing was held in December 2012, no issue relating to Nepal had arisen.  The Tribunal did not contact the applicant in 2013.

4. The claim that the first applicant was at risk of harm from anti-Sikh elements had always been made.  It was made in the visa application, the first applicant’s statement and supported by country information that the applicants supplied to the Tribunal.  The Tribunal accepted that the first applicant faced a well-founded fear of persecution throughout India: [64]  

5. The reasoning which supported the conclusion that the first applicant held a well-founded fear of persecution in India was that: (a) the first applicant had a high profile as the President of the Bhangra group; (b) persons who pursued an actively Sikhist political agenda could face serious harm; (c) the first applicant’s claims were accepted as ‘essentially’ credible; (d) the first applicant would continue to practice his Sikh faith and associated activities, and (e); the Indian State would not sufficiently protect him: [30], [34], [46], [50], [55], [56], [63], [87].

6. The second hearing was convened on 11 March 2014 for the discrete purpose of giving consideration to whether the first applicant had a right to enter and reside in Nepal. As the Reasons at [28] make plain, the Tribunal’s consideration of that issue was for the explicit purpose of evaluating whether, by force of s 36(3), Australia might not owe protection obligations to the first applicant as he had not taken all possible steps to avail himself of a right to enter Nepal and, by extension, was not entitled to protection in Australia as a refugee. In the consideration of that question, once the Tribunal found that subs 36(3) applied, by necessity the Tribunal was obliged to consider whether the first applicant had a well-founded fear of persecution in Nepal such that subs 36(4) operated to render subs 36(3) inapplicable to his case.

7. At the point in the Reasons where the Tribunal first identified the discrete purpose of the second hearing, no mention appears of whether s 36(3) did not apply by operation of s 36(4) of the Act: [28]. In the Reasons, the issue was addressed solely at [79].

8. Contrary to the Minister’s submission, although the Tribunal said that it understood the first applicant had a fervent devotion to his faith and that he would continue to promote it, including in cultural activities if returned to India,[76] the Tribunal did not consider whether he would face a well-founded fear of persecution in Nepal for those reasons.  The Tribunal’s consideration of whether the first applicant would face a well-founded fear of persecution in Nepal as required by subs 36(4) was contained within a single paragraph of the Reasons: [79]. Contrastingly, its consideration of whether subs 36(3) applied to the application was addressed over several pages: [65]-[81]. While it may be accepted that a decision-maker’s reasons are not to be read with an eye keen attuned to error[77], the absence of any real discussion about the issues raised by subs 36(4) makes it more difficult to conclude that the Tribunal properly understood and considered the claim that was made.[78] 

   [76] Reasons, [56]-[57], [63].

   [77]           Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280.

   [78]           CfEzegbe v Minister for Immigration and Border Protection [2019] FCA 216, [33].

9. The brevity of the Tribunal’s consideration of subs 36(4) makes it difficult to accept that it properly understood or considered the first applicant’s claims to a well-founded fear of harm in Nepal. Nor do I accept that the content of the Reasons at [48]-[49], [74] provide a sufficient answer to the conclusion that the Tribunal did not properly construe or consider the claim that the first applicant had a well-founded fear in Nepal as a result of the practice of his Sikh faith or the promotion of that faith by means of cultural activities.  There was, for example, no reference to, or apparent consideration of, the advice in the US report on religious freedom in Nepal that was supplied with the post-hearing submission outlining how the interim Nepalese Constitution forbade proselytizing. 

10. The issue of whether the first applicant faced a well-founded fear of harm in Nepal was first raised at the second hearing without notice.  The Tribunal’s observation that the first applicant had only raised the risk of harm of Hindus at the second hearing for the first time and that he had done so belatedly was somewhat curious in light of the fact that the issue of ‘relocation’ to Nepal was never been addressed at the first hearing.  As the Reasons disclose, at the first hearing, the Tribunal confined the topic of relocation to relocation within India: cf [27]. No mention of Nepal had arisen during the first hearing and nothing in the delegate’s decisional record raised the right to enter and reside in Nepal as an issue that warranted consideration for denying the application.

11. Further, at no time in the period between the first hearing in 2012 or at any time before the second hearing had the Tribunal notified the first applicant that the reason, or part of the reason, for affirming the decision under review.  No intimation was given that the Tribunal considered Australia would be taken not to have protection obligations to the first applicant because he had a right to enter and reside in Nepal, and had not taken all possible measures to avail himself of that right.  Relatedly, the circumstance that the Tribunal had not advised the applicants of this issue in advance of the second hearing may be seen in the context that their new lawyer had asked for a postponement on account of his recent appointment and the short reply that he received was that the applicants could file a post-hearing submission.

12. Nothing in the Tribunal’s invitation to attend the hearing scheduled for 20 December 2012 or the invitation to attend the hearing scheduled for 11 March 2014 contain a suggestion that a reason or a part of the reason for affirming the decision under review was that the Tribunal had considered it might be satisfied that the first applicant had not taken all possible steps to avail himself of protection in Nepal.[79] The application for judicial review was not grounded on a failure to comply with ss 424A or 424AA of the Act. However, in my opinion, those observations remain of some relevance to the level of consciousness in the Tribunal of the issues presented by subs 36(4), including the need to properly construe and consider the claims that were actually being made.

    [79] Act, s 36(4), 424A(1)(a).

13. I have recorded at [135] above the manner in which the Tribunal introduced the issue to the first applicant. The transcript confirms that the first applicant sought clarification of what the Tribunal was referring to on several occasions. In my opinion, the Tribunal’s suggestion that the first applicant had only belatedly raised a more general claim that he was at risk of harm from Hindus and anti-Sikh elements in the course of the second hearing was readily explicable by the circumstances leading up to, occurring at, and immediately following the second hearing. It was only in the context of the issue of Nepal being raised by the Tribunal that the question of harm from Hindus arose. In the course of the second hearing the first applicant gave evidence that although the Nepalese border was porous, the anti-Sikh activists (who were found to represent a well-founded fear of persecution in the first applicant), would not do the killing themselves but would employ others to harm him.

14. Until that point, it was clear the first applicant had raised and pressed a claim that he was at risk of persecution arising from the suppression of Sikh activists by the Sikh-led government of the Pubjab since 1984. Indeed, from its review of the country information supplied by the first applicant and the evidence given at the second hearing, the Tribunal appeared to clearly understand that the first applicant’s primary claim had been that he faced a risk of persecution from other Sikhs: [32]-[47].

15. It may also be noted that while the Tribunal spoke of relocation to Nepal at [31], [48] and [71], it also eschewed the relevance of relocation when dealing with the question of a right to enter and reside in Nepal: cf [73].

16. Given that the delegate’s decision had not identified the issue and that the Tribunal had apologised to the applicants for the delay in deciding their application for merits review, it might have been thought somewhat strange that the first applicant should have anticipated even raising a right to enter and reside in Nepal as a matter that he would be required to address.  Moreover, from my examination of the transcript, it was the Tribunal which made the first reference to Hindus and that only occurred in the final moments of the hearing.[80]  At no earlier stage had the issue of Hindus been raised and, when it was, it arose in the context of the Tribunal responding to, and apparently agreeing with, the statement that Sikhs accounted for 2% of the Nepalese population. 

    [80]           Transcript, T 11 of 12 at line 32.

17. It was for that reason the applicants’ lawyer provided the post-hearing submission: [48]-[49]. Finally, in relation to this issue, I note that the applicants’ post-hearing submission attached the US report, which confirmed that Hindus accounted for ~81% of the Nepalese population.

18. In my opinion, the Tribunal misunderstood the claim as concerned the risk of harm from Hindus.  The claim was raised in the context of the first applicant responding to the Tribunal’s observation that Hindus represented a dominant proportion of the Nepalese population.  The first applicant, in effect, protested that it was difficult for him to address the risk of harm in Nepal, as he had lived in Australia the past six years: “. . . so how can I tell you about a new country like Nepal?” I have considered at [57]-[63] above, other aspects of the Tribunals exchange with the first applicant as to his fear of persecution in Nepal. My examination of those matters confirms my view that while the first applicant had put his claim directly to the Tribunal, yet the Reasons, particularly at [79], do not indicate that the claim was addressed, properly or in any detail.

19. While the Tribunal found that the first applicant had not taken all possible steps to avail himself of a right to enter and reside in Nepal, it might be observed that he had not addressed that issue as it had been raised without notice at the second hearing.

20. In addressing the question of the first applicant’s right to enter and reside in Nepal, the Tribunal addressed the ease with which persons might enter Australia to kill the first applicant and stated at [73]:

    With respect to relocation generally, the Tribunal observed that there seemed to be a big difference between facing a risk of harm a person might face from enemies when living in their midst, and the risk faced when living elsewhere, particularly from a different country altogether.

    This observation appeared to ignore the country information as to the relative ease with which persons might enter Nepal from India.

21. Referring to the applicants’ post-hearing submission, the Tribunal characterised it as having identified that the Sikh community in Nepal was small and considered that a contention had been made that the first applicant would face persecution in Nepal from Hindu extremists just as he has done in India.  While the Tribunal concluded at [74] that it did not accept this characterisation of the applicant’s claims, the manner of that characterisation was the product of the view that the Tribunal had taken of the claims as originally put and subsequently developed in the course of the second hearing.  In my opinion, reading the evidence and submissions of the first applicant fairly and as a whole, he had been consistent in the primary claim to fear harm from anti-Sikh extremists.  The subsidiary claim to a risk of harm from Hindus arose in the final moments of the hearing and did so in response to discussion concerning the porous nature of the Indian/Nepalese border and the ability of anti-Sikh extremists to engage others to kill him.  It was readily understandable in the context of the discussion about Nepal that the first applicant would refer to the very small number of Sikhs living in Nepal.  The Tribunal responded by accepting that Hindus represented the vast majority of the Nepalese population – a fact confirmed by the applicants’ post-hearing submission.

1. While the Reasons at [74] may be understood as referring to findings at [48]-[49], they misconstrued the first applicant’s claims.  He had not sought to initially advance a risk of persecution from Hindu extremists in India.  His primary claim had been and remained that he was at risk of persecution from anti-Sikh extremists and, when the Tribunal raised the issue of a right to enter and reside in Nepal, the first applicant replied and, consistently maintained, that although the Nepalese border was porous, anti-Sikh extremists did not do their own killing and could easily employ others to kill him in Nepal. 

2. Although the Tribunal found that the letter from the Sikh Gurdwara demonstrated that there was a Sikh organisation in Nepal, it did not refer to the content of the letter as indicating the significant diminution in the size of the Sikh population in Nepal.  That said, it must be accepted that it was a matter for the Tribunal to determine the weight it attached to particular items of country information.

3. When the Tribunal found that the first applicant had a right to enter and reside in Nepal, it did so for the explicit purpose of addressing s 36(3). The Tribunal concluded that s 36(3) applied to the first applicant”: [81]. The conclusion at [81] was also couched in qualified terms in that s 36(3) applied to the first applicant, “even if it did accept that there was a real chance of persecution for a Convention reason or a real risk of other significant harm in India.”  As the Reasons at [64], [87] confirm, the Tribunal was in fact satisfied, contrary to the qualification expressed in [81] that there was a real chance of persecution for a Convention reason or a real risk of other significant harm in India.

4. Above all else, the first applicant was just as consistent in the claim that because of his fervent adherence to his faith, he would continue to practice and promote Sikhism in Nepal and would be at risk of harm by reason of his high profile in doing so.  In my opinion, there was no active intellectual engagement with the claim as it had been put.  To adapt the reasoning in BOZ16,[81] the Tribunal developed and employed the construct of the risk of harm from Hindus to the point where it was distracted from, and failed to address, the claim that was actually put. 

   [81] [2018] FCA 418, [59].

5. I consider that the Reasons disclose no proper consideration of the claim that the first applicant faced a well-founded fear of persecution in Nepal as a result of his fervent devotion to, and promotion of his faith. The Tribunal’s reference to high level country information regarding the general state of coexistence of different religions did not meet the requirement to actively engage with the first applicant’s claims. Had the Tribunal done so and accepted that the first applicant’s fervent devotion to, and practice of the Sikh religion in Nepal meant that he faced a real risk of persecution, this may have been dispositive of his claim for protection. That is so because a finding to that effect would mean that by operation of subs 36(4), the disqualifying effect of subs 36(3) would not apply, and instead the gateway to satisfaction of the criterion in subs 36(2)(a) remained open.[82] It follows that the Tribunal failed to properly consider the cascading qualification posed by subs 36(4) as to whether he faced a well-founded fear of persecution in Nepal for the reasons that he had advanced.

   [82]           Cf SZRTC v Minister for Immigration and Border Protection (2014) 224 FCR 570, [25].

6. For the reasons above, the application should be allowed.

I certify that the preceding one hundred and fifty-six (156) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Date: 13 June 2019