DZAEE v Minister for Immigration

[2014] FCCA 1982

FEDERAL CIRCUIT COURT OF AUSTRALIA

DZAEE v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1982

Catchwords:
MIGRATION – Judicial review of Refugee Review Tribunal decision – no jurisdictional error – applicant not owed protection obligation because of right to live in a third country – section 91R(3) of the Migration Act not misapplied.

Legislation:

Migration Act 1958 (Cth), ss.36, 91R(3)

Applicant: DZAEE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: DNG 21 of 2014

Judgment of: Judge Harland

Hearing date: 26 August 2014

Date of Last Submission: 26 August 2014

Delivered at: Darwin

Delivered on: 29 August 2014

REPRESENTATION

The Applicant: In Person

Counsel for the Respondents: Mr Liveris

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. That the application is dismissed pursuant to rule 16.01 of the Federal Circuit Court Rules 2001 (Cth).

2. That the applicant shall pay the costs of the respondents fixed at $6,646.00 in accordance with Schedule 1, Part 3, Division 1 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 21 of 2014

DZAEE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant filed an application for judicial review to this Court on 6 June 2014.

2. He relies on the following grounds:

   i)The Tribunal misapplied the test of whether there was a real risk of significant harm to the applicant if he is returned to his country of origin.

   ii)The Tribunal misapplied section 91R(3) of the Migration Act 1958 (Cth) (the Act).

   iii)The Tribunal misapplied the fundamental principle of refugee law.

3. The applicant set out particulars for each ground in his application.  The applicant filed written submissions and made oral submissions at the hearing.  He represented himself and did not have the benefit of legal assistance.  He clearly researched his case and referred to case law.  He presented his case clearly.  The difficulties the applicant faces are technical legal ones.  He appeared to appreciate this as the arguments were explored at the hearing.

4. The applicant says that he was brought up in a very religious Hindu family in Nepal. He came to Australia in 2008 to study. He says that whilst in Australia he converted to Christianity.

5. The delegate set out the applicant’s migration history at [3]. The applicant was lawfully in Australia pursuant to various student visa from 9 November 2006 until 15 March 2013 when he overstayed his visa. He was apprehended by police on 13 January 2014 and has been in detention since then.

6. The delegate considered that the applicant as a citizen of Nepal has a right to enter India. The delegate referred to the legal basis for this in some detail at [7].

7. The delegate accepted that the applicant converted to Christianity and is an active member of his church, the Church of Christ. The delegate found that the Church of Christ exists in Nepal and India. It is apparent from the decision of the Tribunal that in fact the applicant is a member of the Igesia Ni Christo Church. This church does not have a presence in Nepal but does have two places of worship in India. The country information confirmed this.

8. The applicant made it clear to the Tribunal that he does not want to live in India. His reasons are economic and social. They are not because of fear of persecution.  He said that it would be hard to find employment, he has no family or friends there and he did not like it when he visited as a child. The Tribunal noted that the applicant has tertiary qualifications and speaks fluent English.

9. The applicant filed written submissions in support of his application for review before this court.  He raises matters not raised before the Tribunal. They are not matters I can take into account. To do so would be to impermissibly conduct a merits review.

Ground 1

1. The Tribunal accepted the applicant’s claims that he converted his religion and that his church does not have a presence in Nepal but does in India.

2. The applicant complains that the Tribunal failed to treat his claims that if he returns to Nepal he will be questioned by his family and suffer mental stress amounting to serious harm or significant harm under the Act. This complaint does not need to be determined as the difficulty for the applicant is that according to section 36(3) of the Act, Australia does not owe protection to the applicant because he is entitled to reside in India.

3. The applicant admits that he has not taken any steps pursuant to section 36(3). The applicant has not raised a well-founded fear of harm if he lives in India. He does not like India and does not want to live there. He does not know anyone there and says he will have difficulty finding work there. The Tribunal acknowledged his complaints but also noted that he has tertiary qualifications.

4. Section 36(2)-(5A) is set out below:

   (2)  A criterion for a protection visa is that the applicant for the visa is:

   (a)  a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

   (aa)  a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or

   (b)  a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:

   (i)  is mentioned in paragraph (a); and

   (ii)  holds a protection visa; or

   (c)  a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:

   (i)  is mentioned in paragraph (aa); and

   (ii)  holds a protection visa.

   (2A)  A non‑citizen will suffer significant harm if:

   (a)  the non‑citizen will be arbitrarily deprived of his or her life; or

   (b)  the death penalty will be carried out on the non‑citizen; or

   (c)  the non‑citizen will be subjected to torture; or

   (d)  the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)  the non‑citizen will be subjected to degrading treatment or punishment.

   (2B)  However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)  it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

   (b)  the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

   (c)  the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

   Ineligibility for grant of a protection visa

   (2C)  A non‑citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:

   (a)  the Minister has serious reasons for considering that:

   (i)  the non‑citizen has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or

   (ii)  the non‑citizen committed a serious non‑political crime before entering Australia; or

   (iii)  the non‑citizen has been guilty of acts contrary to the purposes and principles of the United Nations; or

   (b)  the Minister considers, on reasonable grounds, that:

   (i)  the non‑citizen is a danger to Australia’s security; or

   (ii)  the non‑citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.

   Protection obligations

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

   (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.

   (5)  Subsection (3) does not apply in relation to a country if the non‑citizen has a well‑founded fear that:

   (a)  the country will return the non‑citizen to another country; and

   (b)  the non‑citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

   (5A)  Also, subsection (3) does not apply in relation to a country if:

   (a)  the non‑citizen has a well‑founded fear that the country will return the non‑citizen to another country; and

   (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 other country.

   None of the exceptions to section 36 apply to the applicant.

5. The Minister correctly points out in his written submissions that as the applicant has not made out a well-grounded fear of harm in India it was not necessary for the Tribunal to consider his claims with respect to Nepal even though it is clear that it did.  The complaints the applicant has about living in India are ones of social adjustment and not based on any fear of harm.  The Tribunal referred to country information which shows that Nepalese nationals have unlimited rights to stay in India, work, attend school and access health services.[1]

   [1] Court Book p. 176, [33]

6. Ground 1 is dismissed. 

Ground 2

1. The applicant says that the Tribunal misapplied section 91R(3). Section 91R(3) is not well drafted. It is set out below:

   (3)  For the purposes of the application of this Act and the regulations to a particular person:

   (a)  in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

   disregard any conduct engaged in by the person in Australia unless:.

   (b)  the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

2. It is easy to see how the applicant has misinterpreted this section because of the wording.

3. The relevant conduct by the applicant for the purpose of section 91R(3) is the applicant’s conversion to Christianity. The Tribunal did not misapply the section because it accepted that the applicant’s conversion was genuine. The applicant may have had an argument under this ground if the Tribunal had found that the applicant had converted to Christianity in Australia in order to strengthen his refugee claims.

4. The other difficulty for the applicant under this ground is that his church has two places of worship in India so he will be able to continue his religion.

Ground 3

1. The applicant claims he has become a sur place refugee because the Department of Immigration and Border Protection breached his privacy by publishing his name and details on their website for several days.  The Tribunal accepted the Department of Immigration and Border Protection breached the applicant’s privacy.  The Tribunal accepted that the applicant would be questioned about this upon his return to Nepal.

2. Again the problem for the application is that Australia’s protection obligations do not arise because the applicant has not exhausted his options to live in a third country, being India.  This is the overarching problem for the applicant.  Ground 3 is dismissed.

3. As the applicant has been wholly unsuccessful I will order him to pay the respondents’ costs.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  29 August 2014