NAHF v Minister for Immigration

[2003] FMCA 303

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAHF v MINISTER FOR IMMIGRATION [2003] FMCA 303

MIGRATION – Review of RRT decision – application for protection visa – whether the applicant has a well-founded fear of persecution for a Convention reason – whether the applicant has effective protection in home country – where there was an issue regarding the arrival of persons into India from Nepal by air when travelling between the two countries – whether the applicant “as a matter of practical reality” can gain protection in India.

Migration Act 1958 (Cth), s.36(3), (4), (5)

NAGV v Minister for Immigration [2003] FCAFC 144
NAFB v Minister for Immigration [2003] FCA 484
Minister for Immigration & Multicultural & Indigenous Affairs v Thiyagarajah (1997) 80 FCR 543

Applicant: NAHF

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 293 of 2003

Delivered on: 17 July 2003

Delivered at: Sydney

Hearing date: 17 July 2003

Judgment of: Raphael FM

REPRESENTATION

Counsel for the Applicant: Mr J Young

Solicitors for the Applicant: Simon Diab & Associates

Counsel for the Respondent: Mr S Lloyd

Solicitors for the Respondent: Sparke Helmore Solicitors

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $4,250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 293 of 2003

NAHF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The principal applicant in this matter is a Nepalese businessman who together with his wife and child arrived in Australia on 12 September 2001.  On 12 October 2001 the family lodged an application for protection (Class XA) visas with the Department of Immigration & Multicultural & Indigenous Affairs.  On 18 April 2002 a delegate of the Minister refused to grant these visas and on 8 May 2002 the applicants applied for a review of that decision by the Refugee Review Tribunal.  The Tribunal considered their cases and made a decision on 12 November 2002, handed down on 10 December 2002.  It is in respect of that decision that the applicants now seek review.

2. Because the applicant's family seek to be joined in his application and have not submitted any factors of their own pursuant to which they could be considered as refugees independently of the male member of the family I shall refer in these reasons to "the applicant" as encompassing all three.

3. The applicant's well founded fear of persecution for Convention reasons was said by him to have arisen out of harassment by Maoists who, it is notorious, have established a foothold in much of Nepal in opposition to the legitimate government of the country.  The applicant also states that he became a target of the Nepal Congress Party because of his membership of another party in Nepal known as the RPP. 

4. It is not necessary for me to go into any detail about the applicant's claims in respect of the harassment by Maoists because at [CB 106] the Tribunal says:

   “ The applicants claim that in Nepal they were targeted by Maoists and they anticipate similar circumstances in the future.  The Tribunal accepts these claims.”

   On the other hand the Tribunal did not accept the claim made by the applicant that he was being targeted by the NCP.  That is dealt with also at [CB 106] where the Tribunal finds that it does not consider this claim to be credible for reasons there given.

5. Between [CB 106 and CB 110] the Tribunal deals in some detail with the possibility that the applicant may be entitled to effective protection in India and therefore because of the provisions of s.36 of the Migration Act 1958 (Cth) (“the Migration Act”) would not be a person to whom Australia has any protection obligations. The Tribunal comes to the view that because of the existence of the Treaty of Peace and Friendship between India and Nepal:

   “…as a matter of practical reality and fact the applicants can enter and live in India, with rights and privileges commonly available to nationals of that country, without fear they will be forced to return to Nepal.”

6. The Tribunal finds that this brings the applicant within s.36 (3) of the Act and that the family is not exempt from that provision by virtue of any of the matters referred to in ss.36(4) or 36(5).

7. Mr Young who appears on behalf of the applicant argues that the Tribunal did not make a determination as to whether or not the applicant could be considered to have a well founded fear of persecution for Convention reasons arising out of the failure by the Nepalese authorities to protect him from the targeting by Maoists that the Tribunal found to exist.  He argues that the Tribunal came to its decision purely on the basis that the applicant would be entitled to effective protection in India.  Therefore, he says, if I am satisfied that the decision relating to effective protection should be reviewed the whole matter should be sent back to the Tribunal because the Tribunal has not completed its task.

8. I have considered the Tribunal's reasons for decision in some detail and discussed them with both advocates.  In particular I considered whether or not the lengthy paragraph to which I have previously referred and which is found at [CB 106] could have been included within the phrase used by the Tribunal at [CB 110] “having considered the evidence as a whole the Tribunal is not satisfied that the applicants are persons to whom Australia has protection obligations.” 

9. I have come to the conclusion that these extracts from the Tribunal's decision do not cover the question of whether or not Nepal was able to give effective protection to the applicant from the Maoist harassment and targeting which the Tribunal accepts occurred.  The Tribunal states that it accepts these claims:

   “…nevertheless, despite the above considerations, the Tribunal has also considered the matter of ‘effective protection’ and whether the applicant can avoid the harm he anticipates in Nepal by living in India.” 

   This seems to me to indicate that the Tribunal did not independently assess whether or not the applicant could receive effective protection in Nepal.

10. The question of effective protection in a third country is one which has recently been agitated by a Full Bench of the Federal Court in NAGV v Minister for Immigration [2003] FCAFC 144. However, shortly before that decision was handed down Hill J gave a decision in a case, the facts of which fell almost squarely within those of the matter before me known as NAFB v Minister for Immigration [2003] FCA 484. In that case His Honour appeared to accept that the ability of a Nepalese person to live in India brought the applicant within s.36(3) of the Migration Act and therefore that person became one to whom Australia owed no protection obligations unless the tribunal could be satisfied that he fell within the exceptions contained in ss.36(4) and 35(5). His Honour accepted the Tribunal's finding that in relation to a Nepalese person in India this would not occur.

11. Mr Young argues that NAFB did not consider one important question which he believes should have been considered by any Tribunal in relation to a matter such as this. That question is whether or not a Nepalese person who is now in Australia can be placed on a plane and removed into India where he or she will be admitted.  Putting it at its highest, the applicant could also argue that there was no evidence from which a Tribunal could come to the conclusion in this case that that could happen.

12. I have to accept Mr Lloyd's submission that the question was asked because in the paragraph set out below found at [CB 108] it appears to be clearly answered:

    “ Information from external sources considered by the tribunal and discussed with the applicants during the hearing, indicates that as a matter of practical reality and fact they can enter and live in India, with rights and privileges commonly available to nationals of that country without fear that they will be forced to return to Nepal.”

13. Mr Lloyd also argues that there was sufficient evidence in the form of country information before the Tribunal from which the Tribunal could draw the inference which led it to the decision that I have just quoted.  At [CB 102] there is a reference to the requirements for Nepalese persons travelling to India by land. It would appear that those persons are not required to obtain permission or documentation of any kind although they can then live and work in India for indefinite periods. 

14. At [CB 103] there is an extract concerning the arrival of persons into India from Nepal by air when travelling between the two countries.  In those circumstances the person must be in possession of a valid passport or a valid photo identity card or an emergency certificate issued by the Embassy of India in Kathmandu or by the Embassy of Nepal in Delhi in respect of Nepalese citizens. 

15. Mr Young says this does not indicate what the situation would be for a person travelling by air from Australia.  Mr Lloyd argues that a reasonable inference could be drawn that the situation of a person arriving by air from Australia with one of the documents referred to would be in no different position from that of a person arriving by air directly from Nepal. I think that Mr Lloyd is probably correct and that the documentation considered by the Tribunal is sufficient to allow that inference to have been drawn without there being any jurisdictional error.

16. Because I have decided the matter on the basis just discussed I do not need to consider or pass any comment upon the decision of the Full Bench in NAGV.  But for the sake of completeness and in order to protect the position of the applicant in relation to any appeal, I would mention that Mr Young did argue that insofar as the Tribunal's decision was based upon the authority of the Minister for Immigration & Multicultural & Indigenous Affairs v Thiyagarajah (1997) 80 FCR 543, it was wrongly decided.

17. I dismiss the application.  I order that the applicant shall pay the respondent's costs which I assess in the sum of $4,250 pursuant to Part 21, Rule 21.02(a) of the Federal Magistrate's Court Rules.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: