MZZKJ v Minister for Immigration

[2018] FCCA 184

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZKJ v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 184

Catchwords:
MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36

Cases cited:

Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU (2013) 215 FCR 35
SZMWQ v Minister for Immigration and Citizenship [2010] FCAFC 97
MZAEN & Ors v Minister for Immigration & Anor [2016] FCCA 620

Applicant: MZZKJ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1075 of 2016

Judgment of: Judge Riethmuller

Hearing date: 9 October 2017

Date of Last Submission: 15 November 2017

Delivered at: Melbourne

Delivered on: 31 January 2018

REPRESENTATION

The Applicant appeared In Person

Counsel for the First Respondent: Mr Hosking

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1075 of 2016

MZZKJ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made in April 2016.  The Tribunal affirmed a decision of a delegate of the Minister made in March 2012, declining to grant the applicant a protection visa.

2. The applicant is a citizen of India.  The applicant claimed to have a well-founded fear of persecution in India as a result of his sexuality (he identifies as homosexual) and as a result of harm perpetrated against him by an extended family member by way of sexual assaults.

3. The present Tribunal decision is the third Tribunal decision, the first two being set aside for reasons not relevant to the determination in this matter.

4. The Tribunal concluded that if the applicant were to return to an area near to where his abuser lives he would face “some chance” of the abuser causing him serious harm, on the basis that the abuser is embarrassed and does not wish it to be known that he had abused the applicant (see Tribunal decision para.16), however this was not a harm based upon a Convention reason.  In seeking protection from the perpetrator, the applicant would be denied protection as a result of his homosexuality, and therefore has a well-founded fear of being persecuted if he returned to his home region.  Ultimately, the Tribunal concluded that the applicant had made out his claim for protection for Convention reasons in India.

5. In this case, the applicant has the ability to enter Nepal as a result of his Indian citizenship. This flows from the Indo-Nepal Treaty of Peace and Friendship of 1950 and various administrative arrangements. The applicant’s ability to enter and reside in Nepal falls within ss.36(3) and (4) of the Migration Act 1958 (Cth), which provide as follows:

   (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. 

6. The phrase significant harm is defined in s.36(2A) of the Act:

   (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.

7. The Tribunal member found that there was no more than a remote or far-fetched chance that the perpetrator would have the motivation, or even be aware, that the applicant was residing in Nepal so as to cause serious harm to the applicant.  The Tribunal member was also of the view that the applicant was not at serious risk of harm as a result of being a homosexual man in Nepal, particularly in light of recent country information with respect to the Nepalese government’s movements towards ensuring equality for homosexual men in recent time.  There was evidence that Nepal had been described as one of the most progressive countries, in terms of gay rights, in the region by the ABC News on 30 August 2010 (see para.48 of the Tribunal decision).  The Tribunal accepted that there had been some incidents in recent times of police harassment of homosexual men and women, but ultimately did not accept that there was a real chance that the applicant would face a real risk of significant harm in Nepal.  The Tribunal member concluded:

   70.  With regard to the claims made by him and [D] that the applicant would not be able to look after himself, find employment or speak the language, having carefully considered the independent information, I consider that any difficulties he may face in learning to look after himself, obtaining a place to live or employment would not cause him to suffer harm that would amount to serious or significant harm, and, in light of him having the financial support of his brother [D], who has financially supported the applicant in India and Australia I do not accept that the applicant would become homeless or destitute or that he would otherwise suffer harm that would amount to serious or significant harm for reasons relating to financial matters, language or accommodation and the capacity to subsist.

8. The Tribunal member went on to squarely consider the operation of s.36(3) saying:

   72.  As discussed at the hearing, s.36(3) does not permit a decision maker to consider whether the exercise of a right to enter and reside is ‘reasonable’, rather it requires consideration of whether a person has taken ‘all possible steps’ to avail themselves of a right to enter and reside.  I find that while the applicant will face substantial hurdles in making a life in Nepal, s.36(3) does not incorporate any requirement to consider matters such as a person’s ability to obtain employment or accommodation, or to access welfare benefits upon taking up residence (SZMWQ v MIAC (2010) 187 FCR 109).  Nor are Australia’s protection obligations enlivened by virtue of the possibility that a person may suffer privation or be exposed to significant difficulties in maintaining a lifestyle by exercising such a right outside Australia (SZMWQ v MIAC (2010) 187 FCR 109 per Rares J at [32].  However in SZRTC v MIAC [2014] FCAFC 43 at [48]).

9. On the day of the hearing before this Court the applicant appeared, apparently heavily medicated as a result of psychiatric illnesses.  Inquiries through the interpreter confirmed that the applicant was aware of the proceedings, and his brother attended with him to speak on his behalf.  The applicant confirmed that he was content with his brother speaking on his behalf.  I had the Minister provide the applicant’s brother with a copy of the folder of authorities, which included Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU (2013) 215 FCR 35, and the relevant sections of the legislation. I adjourned the matter until after lunch to allow the brother the opportunity to review those materials. Following the luncheon adjournment, I granted the applicant (through his brother or individually if he preferred) the option of providing further written submissions within 28 days, and the Minister 14 days thereafter, and an option for either party to seek a further oral hearing if the request was made within seven days after that.

10. Further submissions were filed by the applicant on 1 November 2017.  The first respondent answered those submission on 15 November 2017.  No request was made for a further oral hearing.

11. It is apparent, from the decision in SZRHU that the applicant has a liberty, permission, or privilege lawfully given to enter and reside in Nepal, as found by the Tribunal.  In SZMWQ v Minister for Immigration and Citizenship [2010] FCAFC 97, Rares J considered the problem of countries without social security systems such as Nepal, saying:

    32. Essentially, s.36(3) is directed to excluding Australia’s obligations to grant protection under the Convention to a person who has a right to enter and reside in another country, but has not taken all possible steps to avail himself or herself of that right. It is not sufficient that, by exercising such a right outside Australia, the person may suffer privation or be exposed to significant difficulties in maintaining a lifestyle, that do not arise for a Convention reason (i.e. a well-founded fear of persecution). Unfortunately, experience has shown that there are many countries in the world without social welfare to which persons flee in an attempt to avoid persecution. If there is a country that will offer a refugee from Convention related persecution the right to enter and reside, where he or she will not suffer the persecution claimed, the mere fact that the country has no social security system at all could not enliven a protection obligation to that person in Australia were he or she to arrive here. It was common ground that ss.36(4) and (5) did not operate to exclude s.36(3) in relation to the appellant if he were to go to Spain.

12. Flick J said:

    110. Left open for future resolution is a question as to whether a person who has a “right to enter and reside” in another country may so confront economic or physical circumstances that he may not truly be said to have such a “right”. The right is a “right to enter and reside”; it is perhaps different to a “right to enter and subsist”. Regulation 5 to the Revised 1956 Regulations for Inmates for the United States Penitentiary for Alcatraz, California, it will be recalled provided:

    PRIVILEGES. You are entitled to food, clothing, shelter and medical attention. Anything else that you get is a privilege. You earn your privileges by conducting yourself properly. ‘Good Standing’ is a term applied to inmates who have a good conduct record and a good work record and who are not undergoing disciplinary restrictions.

    It would be desirable to conclude that a “right to enter and reside” means a little more than the basic entitlements extended to inmates of Alcatraz over half a century ago. A right to enter a country and to have access to basic shelter and food may not be as desirable as a claimant may hope for, but it may perhaps remain a “right to enter and reside”. Examples are regrettably not infrequent where those fleeing persecution are housed by another country in tents or make-shift accommodation and have no ability to obtain employment and where their ability to move freely throughout a country may be seriously circumscribed. But their ability “to enter and reside” in the country to which they have fled may nevertheless still fall within the ambit of the qualification expressed in s.36(3).

13. With respect to Nepal, there does not appear to be any specific restrictions that would be imposed on the applicant.  Rather, that the difficulty is one of national poverty that little, if anything, would be provided to assist him by the Nepalese state, and he is a man of significant needs given his mental issues, that he suffers Guillain-Barre syndrome, has had a history of sexual abuse, and has no family in Nepal.  Despite these matters, the Tribunal concluded that there was not a real chance the applicant would face serious harm or persecution for a convention reason, or that there would be a real risk of suffering significant harm in the sense described in the legislation, saying:

    73 I have also considered whether his individual claims, cumulatively, would together create a real chance or real risk of him being subjected to serious or significant harm in Nepal in the reasonably foreseeable future.  I have considered whether the combination of him being an Indian national; identifying as a homosexual; his undiagnosed mental health issues; his having attempted suicide in the past; suffering Guillain-Barre syndrome or the physical and psychological effects of that; history of sexual abuse; ethnicity; colour of skin; his inability to speak Nepalese or another language spoken in Nepal; and lack of family or other support would, cumulatively, cause him to be at risk of suffering serious or significant harm if he goes to Nepal in the reasonably foreseeable future.  Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before me, and given my findings and reasons in relation to each of these matters, I do not accept that there is a real chance the applicant would face serious harm amounting to persecution for these reasons, or that there are substantial grounds for believing that there is a real risk he will suffer significant harm in that way were he to enter and reside in Nepal. (emphasis added)

Grounds

1. The applicant relied on four grounds as follows:

   1. The decision by the Minister and the Tribunal was not made in accordance with Australia’s protection obligations and the Convention.

   2. Travel advice by the US State Department and DFAT expressly states that Nepal is at present an extremely dangerous country to travel or live in.

   3. Nepal does not recognise refugees or offer protection to non-citizens or any other nation, including its own citizens who belong to minority groups.

   4. The “friendship treaty” which the Minister and Tribunal have extensively relied on as authority to relocate [the applicant] does not contain enforceable rights for protection to non-citizens, in particular, the obligations that are contained in the Convention.  Most critically, Nepal is still not a member of the Convention.

Ground 1

1. Whilst it is alleged that the decision was not made in accordance with Australia’s protection obligations under the Convention, it is apparent that the Tribunal applied the relevant domestic statutes that apply in such a case.  There appears to be no error in this regard.

Ground 2

1. The applicant says that Nepal is said to be an extremely dangerous place to travel to or live in at present.  This claim was dealt with by the Tribunal at para.71 of their decision, where they said:

   71. In the most recent submission it is claimed that Nepali police forces may have limited resources to deter and investigate crimes and their services are not up to Western standards and that many cases reported to the police remain unresolved, and the Australia Government DFAT travel advice for Australian citizens notes that a high degree of caution should be exercised in Nepal and that there is an increased level of civil unrest and protests in the Southern provinces bordering India which have resulted in a shortage of food and other supplies.  I do not accept, on the information before me, that this information indicates that the applicant will face a real chance of persecution or a real risk of significant harm for any reason connected to these statements.

2. Thus, this ground cannot succeed.

Grounds 3 and 4

1. It is clear that the applicant would not enter Nepal as a refugee, or obtain refugee status but has the ability to enter under the Friendship Treaty. As a result the applicant does not fall within the Australian domestic law definition of a person entitled to a protection visa as a result of the operation of s.36(3) of the Act. In these circumstances, these matters do not amount to a ground for judicial review.

Arguments raised in additional materials

1. In further submission the applicant’s brother sets out that he unable to provide support for the application if he is living in Nepal.  The applicant’s brother explained that he misunderstood what the Tribunal asked him.

2. The applicant says he will suffer significant harm in Nepal as a result of the lack of state or other support, the poor state of the economy and his particular medical needs.  The applicant also says there is a real risk of expulsion from Nepal.

3. The argument is that the applicant is at real risk of suffering significant harm in Nepal as defined in s.36(4)(b) of the Act, and thus effectively that the Tribunal failed to appropriate deal with this issue. However, the Tribunal addressed these issues in the decision: see para.70 quoted above.

4. I note that effectively the applicant challenges the broad interpretation of s.36(3) given by Flick J in SZRTC, as applied by the Tribunal: see paras.88 and 119.  It is appropriate that I apply the reasoning in SZRTC: it is an argument that may be addressed to the Full Court of the Federal Court if the applicant pursues it.

5. In concluding that the risk of suicide by the application was not within the definition of serious or significant harm in s.36(2A), the Tribunal took the view that the definition requires the harm to be directly perpetrated by a third party, saying:

   68. I have considered the applicant’s claims, and those made by his brother, that he has attempted suicide again and may do so if he is forced to depart Australia, taken away from his family in Australia and forced to enter and reside in Nepal.  I have carefully considered these claims.  At the outset, I find that persecution requires a persecutor, that is a third party, and that the defined forms of significant harm into which self harm may be placed require intention on the part of a third party.  Even were these hurdles overcome, I find that there is no real chance or real risk of the applicant committing suicide or self-harming.  I note that this happened in the past during the period in which he was being abused and he has not engaged in any self harming behaviour since.  I do not accept that there is a real chance or real risk of him being abused in Nepal.  Whilst he has said that he wishes to stay in Australia with the support and care of his brother, which I do accept and sympathise with, I do not accept on the evidence before me that were this optimal circumstance to cease, that this would lead to him self-harming.  I note that he and his brother gave evidence that [D] would support him financially if he had to enter and reside in Nepal.  Given all these factors I do not accept that there is any real chance of him committing suicide or self-harming, nor is there a real risk of him suffering significant harm by committing suicide or self-harming were her to enter and reside in Nepal.

6. There is nothing in s.36(2)(aa) requiring a specific perpetrator. The subsection is predicated simply by the harm being a consequence of removal from Australia:

   36(2)  A criterion for a protection visa is that the applicant for the visa is:

   …

(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

1. As Riley J pointed out in MZAEN & Ors v Minister for Immigration & Anor [2016] FCCA 620, it is the consequence of removal that the section addresses.

1. However, in this case the Tribunal found that there was no real chance of the applicant self-harming.  As a result the question of whether or not a third party perpetrator is required is not necessary to answer in the context of the finding of facts in this case.

2. As the applicant has not established a ground for judicial review, I must therefore dismiss the current application.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  31 January 2018