MZZXS v Minister for Immigration
[2014] FCCA 1054
•5 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZXS v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1054 |
| Catchwords: MIGRATION – Protection visa – meaning of “right to enter and reside” – whether confined to legal rights – no jurisdictional error – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(3), (4), (5), (5A) |
| SZRTC v Minister for Immigration & Border Protection [2014] FCAFC 43 Minister for Immigration, Multicultural Affairs & Citizenship v SZHRU [2013] FCAFC 91 Minister for Immigration & Citizenship v SZIAI (2009) HCA 39 at [25]-[26] |
| Applicant: | MZZXS |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 2247 of 2013 |
| Judgment of: | Judge Jones |
| Hearing date: | 22 May 2014 |
| Date of Last Submission: | 22 May 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 5 September 2014 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Respondents: | Mr Lukic |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 16 December 2013 be dismissed.
The applicant pay the respondent its costs in the amount of $6,646.00 within 28 days of these Orders.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2247 of 2013
| MZZXS |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 15 November 2013, affirming a decision of a delegate of the first respondent, dated 26 October 2012, not to grant the applicant a Protection (Class XA) visa (“the Protection visa”).
Background
The applicant is a citizen of Nepal and first arrived in Australia in 2009 on a student visa. His claims for a Protection visa are based on his membership of the Communist Party of Nepal, the CPN–UML (Unified Marxist – Leninists), and in particular, the party’s youth wing, referred to as the Youth Force and later, the Youth Association.
On 29 June 2012, the applicant applied to the Department of Immigration and Citizenship (as it then was) (“Department”) for the protection visa (CB 1 – 44).
On 26 October 2012, a delegate of the Minister refused to grant the applicant the protection visa (CB 176 – 202).
On 28 November 2012, the applicant applied to the Tribunal for review of the delegates decision (CB 203 – 228).
Tribunal Decision
The applicants claims of persecution, contained in his application for a protection visa (CB 8-11) are correctly identified and summarised by the Tribunal in its decision record (CB 277 – 280) as:
· he was a member of the Communist Party of Nepal (unified Marxist Leninist) (CPN–UML) and had been on the village committee for more than 10 years. He was also a member of the youth wing of the party, the Youth Force;
· another Communist Party, the Unified Communist Party of Nepal – Maoist League (UCPN-M) and its youth group (Young Communist league (YCL) wanted him to join them and threatened him when he would not do so. The threats commenced in 2008 and they said they would kill him if he did not join. There were violent clashes between the two groups which was ongoing;
· in April 2012 he returned to Nepal (having obtained a student visa in Australia) to visit his family and friends. Whilst in Nepal he was attacked by the YCL by a group of armed people with iron rods, knives and sticks. They took the applicant to the jungle and attacked him severely. He was hit and punched until he was unconscious and when he regained consciousness he was in hospital;
· he immediately returned to Australia and applied for a protection visa even though his student visa was valid until 2014;
· The attack in April 2012 made him realise that he was still at risk of serious harm in Nepal. After he left Nepal, the UCPN–M left a threatening letter on the door of his parents’ home. A copy of this letter and translation was provided to the Department. The applicant also provided a copy of the hospital discharge ticket, an original newspaper containing a report regarding the attack on him in 2012, a press release from the Youth Association regarding the attack in May 2012 and a police report dated 12 July 2012;
· the applicant feared the YCL cadres if he returned to Nepal. Although they were suspended from the posts they remain active, they threaten the media and he believed that they would attack him again if he did not accept their proposal to work for them. He believed they would kill him, and the government, police and the public could and would not do anything;
· if he returned to Nepal he would have to get involved in politics.
The Tribunal first commenced to consider whether the applicant had a well-founded fear of persecution for a convention reason.
The Tribunal accepted the applicant’s claims concerning his involvement in CPN – UML and his fear of retribution from UCPN – M. In particular the Tribunal accepted:
· the applicant was a member of the CPN – UNL and involved in the Youth Force. The Tribunal also accepted that the applicant was an area organiser and member of the village committee and well-known in his area for political activities (CB 277 at [21]);
· the applicant has been involved in political clashes in the past and accepts that he was attacked in May 2012 by the YCL when he returned to Nepal (CB 280 at [36]);
· that, if the applicant returned to Nepal he would continue to be involved in politics in Nepal (CB 280 at [38]).
The Tribunal found that:
· the essential or significant reason for the attack in May 2012 by the YCL was the applicant’s political opinion adverse to the YCL;
· the authorities in Nepal are unable or unwilling to protect the applicant from risk of harm from their YCL;
· therefore, the harm he suffered was for reasons of a Convention ground (CB 280 at [37]).
The Tribunal found that based on the applicant’s desire to continue to be involved in politics, the country information and the applicant’s past experience that there is a real chance that he would be seriously harmed in the form of significant physical harassment or significant physical ill-treatment in the reasonably foreseeable future if he returned to Nepal. It further found that the applicant would be involved in politics where ever he lived and the YCL exists throughout Nepal as does the lack of police protection from YCL attacks, the applicant would not be up to relocate to avoid the risk of harm. Consequently, the Tribunal found that the applicant did have a well-founded fear of persecution for a convention reason in Nepal (CB 280 at [37]).
Having so found, the Tribunal proceeded to consider whether Australia did not have protection obligations in relation to the applicant by reason of the operation of s.36(3),(4),(5) and (5A) of the Act.
In determining whether s.36 (3) applied, the Tribunal considered the following. Firstly, it considered the Treaty of Peace and Friendship 1950 between India and Nepal and noted that Article 7 provided:
“The governments of India and Nepal agree to grant, on reciprocal basis, to the nationals of one country in the territories of the other the same privileges in the matter of residence, ownership of property, the station in trade and commerce, movement and other privileges of a similar nature.” (CB 281 at [40]).
The Tribunal then considers country information and stated (CB 283 at [45] to [46] (footnotes omitted):
“45.Numerous sources refer to the rights of Nepalese in India, including employment, property purchase and access to education and health services. The Tribunal has found no reports indicating that Nepalese in India are routinely targeted for serious or significant harm, although some reports refer to difficulties faced by at least some Nepalese in India who may be vulnerable to the same labour rights violations in various forms of exploitation as impoverished Indians. There is also evidence of some informal societal discrimination.”
“46.The Tribunal has found no information to suggest that Nepalese or Indian Maoists target Nepali migrants in India. No information was located which indicates that Nepalese Maoists, now or recently, cooperate with Maoists in India to pursue, identify and target persons they previously threatened in Nepal. No information was located which indicates that Nepalese living in India are currently, or have been recently, targeted by or in relation to Nepalese political parties or groups.”
The Tribunal noted that the country information disclosed that there was evidence of an ongoing Naxalite (Maoist) presence in central and eastern India, concentrated import rule areas and with little impact on India’s cities. It noted that whilst Maoists of Nepal have well established linkages with Indian left – wing extremist organisations, links between Communist parties in India and Nepal have declined (CB 283 at [47]).
In its decision record the Tribunal records that it discussed with the applicant the fact that he had a right to enter and reside in India. The Tribunal then identified the reasons the applicant feared going to India. These were (CB 283 at [48]):
· in India there is religious violence and he feared being targeted by Muslims;
· there was political violence in India and the Maoists are active in there;
· he would have trouble with the language in India;
· there were no equal rights and terrorists were active there;
· he would be deprived of his cultural rights;
· he would be tortured in India;
· there was no equality of all welfare rights in India;
· the Friendship Treaty had not been passed into Indian law; and
· the Treaty only gave a right to enter and reside not a right of citizenship.
The Tribunal found that the applicant did have a right to enter and reside in India and that s.36(3) of the Act applied to the applicant. In so finding, the Tribunal had regard to the terms of the 1950 Treaty of Peace and Friendship between India and Nepal; the consequential administrative provisions as currently set out by the Bureau of Immigration, Ministry of Home Affairs, Government of India, on its website; and the recent advice of Australia’s Department of Foreign Affairs and Trade in relation to the practical situation (CB281 to 282 at [40] to [42] and CB284 at [53]).
The Tribunal accepted that the Treaty of Peace and Friendship did not confer citizenship but noted that this was not required to meet the requirements of s.36(3) of the Act (CB284 atT [53]).
The Tribunal then considered whether the applicant had a well-founded fear of persecution for convention reason in India or whether there was substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant exercising his right to enter and reside in India, there would be a real risk that he would suffer significant harm, s.36(4) .
The Tribunal found that there was no real chance that the applicant would be seriously harmed by the YCL or other Maoist groups, in India and any fear of persecution on this basis was not well founded. It was also satisfied that there were no substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to India there was a real risk that the applicant would suffer significant harm at the hands of the Maoists (CB284 at [54]).
The Tribunal found that there was no real risk that the applicant would be seriously harmed on account being Hindu, in India and any fear of persecution on this basis was not well founded. It stated that no material had been provided to the Tribunal that the minority Muslim population in India targets the majority Hindu population for harm. For the same reasons the Tribunal was satisfied that there were no substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to India there was a real risk that he would suffer significant harm (CB284 at [55]).
The Tribunal acknowledged that there was terrorist violence in India but the likelihood that the applicant would be a target of such attacks was remote. Accordingly, the Tribunal found that there was no real chance that the applicant would be seriously harmed in terrorist attacks in India and any fear of persecution on this basis was not well founded. For the same reason the Tribunal was satisfied that there were no substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to India there was a real risk that he would suffer significant harm (CB285 at [56]).
The Tribunal noted that the applicant claimed he would be deprived of his cultural rights in India but that he had not articulated what they were or how this would affect him. The Tribunal did not accept on the evidence before it that any deprivation of rights would amount to serious or significant harm (CB285 at [57]).
The Tribunal stated that on the basis of the information before it, it was satisfied that the Indian authorities would not return the applicant to Nepal (or any other country), s.36(5) and (5A), (CB285 at [59]).
Consequently, the Tribunal found that s.36(4),(5) and (5A) of the Act did not apply to the applicant (CB285 at [59]).
Applicable Law
25.Section 36 of the Act relevantly provided that:
“(1) There is a class of visas to be known as protection visas.
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugee 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.
(3) Australia is taken not to have protection obligations to 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.”
In SZRTC v Minister for Immigration and Border Protection [2014] FCAFC 43 (SZRTC) the Full Court considered the operation of the provisions of s.36 of the Act at [24] to [26]:
24. Section 36 of the Act contains a cascading series of qualifications. Sub-section (3) operates as a qualification on sub-section (2). Sub-sections (4)-(5A) then operate as qualifications on sub-section (3): see NBLB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1051 at [38] (Emmett J), a construction endorsed on appeal by Bennett and Graham JJ; NBLC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 272; (2005) 149 FCR 151 at 155, 166-7; and see also NBGM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 60; (2006) 150 FCR 522 at 529 (Black CJ).
25. 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.
26. This is the context in which s 36(3) falls to be construed.
In Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91 (SZRHU), the Full Court held that the phrase “a right to enter and reside” was not confined in its operation to legally enforceable rights.
In SZRHU, Buchannan J (with whom Tracy, Robertson and Griffiths JJ agreed), relevantly observed at [77] and [90]:
[77] It is clear from the terms of s 36(3) of the Act that the “right to enter and reside” in another country which a non-citizen of Australia may have is not necessarily a right associated with citizenship of that other country. Indeed, the commonplace scenario is that of a citizen fleeing his or her own country and seeking refuge in Australia. The question for consideration in such a case is whether there is a third country (ie other than Australia or the country of citizenship) where the visa applicant already has a right to enter and reside. If so, by reason of the operation of s 36(3) at least, Australia does not owe that visa applicant protection obligations. In those circumstances, the “right” to which s 36(3) refers cannot be equated to rights which accompany citizenship. Inevitably, the “right” is less certain or secure than that.
His Honour set out the correct approach to be adopted by the Tribunal in circumstances where there is a treaty between the country from which an asylum seeker was fleeing and another country at [90]:
[90] The RRT in each of the present cases was in error to conclude that the terms of the Treaty represented or reflected a legally enforceable right to enter and reside in India. The RRT failed to apply the correct test to the evaluation of that question. In each case, the RRT should deal again with the applications before it using the correct test. It should pay regard to the Actual terms of the Treaty and should also evaluate whether, in combination with the terms of the Treaty, the administrative arrangements for entry by Nepalese citizens at the Indian border (or any other arrangements with respect to entry identified by it) satisfy the test.
Grounds of Judicial Review
The applicant’s grounds are set out in full below:
“1. My submission for RRT was not focused properly during the hearings.
2. Transcript or CD must be as it is not on short Cut.
3. Judicial error
Because Indian Embassy Canberra, and Indian Embassy doesn’t accept me as a refugee in India. Friendship treaty doesn’t mention any refugee status. When I discussed Indian Embassy Canberra, one of the official has requested Australian Department and Border Protection and Immigration to write about this matter that Nepalese people who hold a refugee status can’t go to India according to 1950 treaty. Therefore, please write Indian Embassy Canberra and India to accept me as a refugee.
As the applicant was self-represented I attempted to explain to the applicant the nature of judicial review proceedings compared to merit proceedings conducted by the Tribunal. In particular, I stated that the function of the Court was to focus on the Tribunal decision and determine whether it had made a serious legal mistake (judicial error). I then asked the applicant to explain to the Court each of his grounds of judicial review.
Ground 1
The applicant submitted that the Tribunal had not considered material he had provided regarding Nepalese people in India. He identified a paper he provided to it, being an extract from the Darjeeling Times in which it discussed the absence of labour regulation for Nepalese people in India as well is their low socio economic status (CB 241 to 243).
The material provided by the applicant in his submissions to the Tribunal regarding Nepalese people in India focuses on the economic hardships and associated social deprivations of Nepalese people in India. I am unable to identify material provided by the applicant which deals with the matters relevant to the s.36(4), (5) and (5A) of the Act.
In its decision record the Tribunal stated at [45]:
45. Numerous sources refer to the rights of Nepalese in India, including employment, property purchase and access to education and health services. The Tribunal has found no reports indicating that Nepalese in India are routinely targeted for serious or significant harm, although some reports refer to difficulties faced by at least some Nepalese in India who may be vulnerable to the same labour rights violations and various forms of exploitation as impoverished Indians. There is also evidence of some informal societal discrimination.
I am satisfied that the Tribunal did consider the material provided by the applicant insofar as it concerned Nepalese people living in India.
The applicant raises no concern regarding the Tribunal is identification of his claims of persecution in Nepal or the evidence dealing with this.
I find that the applicant’s ground 1 does not constitute jurisdictional error on the part of the Tribunal.
Ground 2
The applicant submitted that the record in the Tribunal’s decision was a summary but not exactly what he said in evidence to the Tribunal. He said that he had not applied to have the transcript of the proceedings provided to the Court.
As the applicant has not provided the Court with a transcript of the proceedings before the Tribunal, I am unable to find that the Tribunal incorrectly recorded the applicant’s evidence. Ground two is therefore dismissed.
Ground 3
The applicant submitted that the Tribunal should not have relied on the Treaty of Friendship alone but should have considered all the circumstances.
At the completion of the submissions the applicant stated that the contents of the Court Book filed by the respondents pursuant to the orders made by Registrar Allaway on 5 March 2014 did not contain parts of his submission made to the Tribunal. Copies of the missing parts of his submission were made during the proceedings and the applicant was sworn in the witness box. His evidence was that this document was part of his submissions to the Tribunal. The document was marked exhibit A1. I advised the parties that I was satisfied, having regard to the evidence of the applicant, that this document forms part of the applicants submissions to the Tribunal but was inadvertently not included in the Court book.
Exhibit A1 commences with the applicant’s submission to the Tribunal included in the Court book (CB239 to 240) and additional three pages. The first of these three pages is headed “FMC Case: Nepal and living in India. There is then an extract of the decision of Federal Magistrate Smith in SZRHU v Minister for Immigration & Anor [2012] FMCA 1013 at [23]. The gist of this decision was that the “right to enter and reside” under s.36(3) is a reference to a legally enforceable right. This decision was overturned on appeal. As earlier noted, the full Court in SZRHU held that the reference in s.36(3) of the Act to a “right to enter and reside” is not limited to a legally enforceable right, including the right to citizenship. The applicant’s reliance on this in his submission was therefore misconceived.
I agree with the Minister that ground 3 is directed to the scope of the Tribunal’s enquiries. The applicant appears to assert that the Tribunal was obliged to enquire with the Indian Embassy whether the applicant would have a refugee status in India and, further, to correspond with the Indian Embassy regarding the applicant’s application. This submission is misconceived.
The enquiry suggested was not an obvious enquiry, easily made and which would have been dispositive. In Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25]-[26] the High Court stated:
“Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction[1]. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
The first reason is that there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the Tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the Tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the Tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the Tribunal’s decision was infected by jurisdictional error.”
[1] See authorities collected in Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 at 453 [189], n 214; [2001] HCA 51.
In this matter, the applicant sought enquiries to be made of the Indian Embassy with respect to his status as a refugee in India. This train of inquiry was unnecessary as the “right to enter and reside” under s.36(3) is not to be confined by reference to legally enforceable rights; such as citizenship or refugee status. Rather as the Full Court pointed out in SZHRU it was to be ascertained by reference to “the actual terms of the Treaty and should also evaluate whether, in combination with the terms of the Treaty, the administrative arrangements for entry by Nepalese citizens at the Indian border (or any other arrangements with respect to entry identified by it) satisfy the test.”
I am satisfied that the Tribunal applied this test correctly. Accordingly, I find that the third ground does not give rise to jurisdictional error by the Tribunal.
Conclusion
For the reasons set out above, I have decided that the application for judicial review filed by the applicant on 16 December 2013 be dismissed and that the applicant pay the respondent its costs according to scale in the amount of $6646 within 28 days of the orders giving effect to this decision.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 5 September 2014
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