SZEDC v Minister for Immigration
[2005] FMCA 433
•13 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEDC v MINISTER FOR IMMIGRATION | [2005] FMCA 433 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.36, 36(3)-(5), 91X, 422, 422B, 424A, 424A(3)(a)
Judiciary Act 1903 (Cth), s.39B
Border Protection Legislation Amendment Act 1999
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1994) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30
Thiyagarajah v Minister for Immigration & Multicultural Affairs [1997] FCA 136
Judicial Review of Administrative Action (3rd Edition)
Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441
Assi v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 195 ALR 166
Minister for Immigration & Multicultural Affairs v Al-Sallal (1999) 94 FCR 549
Minister for Immigration & Multicultural Affairs v Thiyagarajah (1998) 80 FCR 543
S115/00A v Minister for Immigration & Multicultural Affairs (2001) 180 ALR 561
Minister for Immigration & Multicultural Affairs v Applicant C [2001] FCA 1332
Kola & Anor v Minister for Immigration & Multicultural Affairs [2002] FCAFC 59
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264
| Applicant: | SZEDC |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2466 of 2004 |
| Delivered on: | 13 April 2005 |
| Delivered at: | Sydney |
| Hearing date: | 2 February 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
| Solicitor for the Applicant: | Mr M Newman of Newman & Associates |
| Counsel for the Respondent: | Ms L Clegg |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2466 of 2004
| SZEDC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 8 June 2004 and handed down on 30 June 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 19 February 2004 to refuse to grant the applicant a protection (Class XA) visa.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZEDC”.
The applicant, who claims to be a citizen of Nepal, arrived in Australia on 26 November 2003. On 24 December 2003 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”). On 19 February 2004 the delegate refused to grant a protection visa and on 5 March 2004 the applicant applied for a review of that decision by the Tribunal.
The applicant is a single male born on 18 August 1970. He stated he has completed twelve years of education in Nepal and was self employed in the poultry farm business from 1997 to 2001. The applicant travelled to Australia on a valid Nepalese passport, issued to him by the Government of Nepal.
The applicant claimed to fear persecution by members of the Communist Party of Nepal (the Maoists) by reason of his past association with the Nepal Students Union (NSU) and the Nepali Congress Party (NCP). The applicant claimed that he and his family belonged to the NCP and he had been associated with the NCP since his student days.
During 2002 the applicant claimed he was responsible for managing his family’s poultry farm business and from time to time the business was required to make “donations” to the Maoists (Court Book pp.28, 79) (“CB”). This requirement to make “donations” was common in the area where the applicant lived (CB p.81).
On 19 September 2002 the applicant stated that the Maoists demanded money from the business that was beyond the capacity of the family to pay. Upon refusing to pay, the applicant was abducted and taken by the Maoists to a remote house and beaten unconscious. The Maoists then left the applicant at the edge of a forest where he was taken by villagers to a local hospital (CB pp.29, 80). After a day of treatment at the hospital the applicant was taken to a hospital in India where he remained for a week. The applicant claimed he suffered brain damage as a result of the attack which has left him with psychological problems and an ongoing need for medication (CB p.29).
Upon the applicant’s return to his village he reported the matter to the police. The police attempted but were not successful in arresting the culprits responsible for the attack on the applicant. The applicant claimed that as a result of the Maoists being put on notice that he had reported them to the police, he was threatened and forced to live underground (CB pp.29, 80). With the help of family members the applicant escaped to Kathmandu before departing for Australia. The applicant claimed that his uncle is a senior Maoist figure and knows the applicant’s activities and whereabouts (CB pp.29, 80). This, together with the fact that the applicant and his family are “business people”, mean that he will always be a target and face serious reprisals from the Maoists (CB p.81). The applicant claimed he would be killed by the Maoists if he returned to Nepal (CB p.29).
The Tribunal’s findings and reasons
The Tribunal invited the applicant to attend a hearing on 8 April 2004 to give oral evidence and provide any additional material in support of his application (CB p.55). The applicant appeared at the hearing and was accompanied by the applicant’s migration adviser (CB p.79). The Tribunal discussed the applicant’s claims with him and also discussed “Australia’s legal obligations” and the concept of “effective protection” (CB p.81). The Tribunal put to the applicant the independent country information regarding his right to enter, reside and re-enter India (due to a legal agreement between the Governments of Nepal and India) (CB pp.81-82). The Tribunal also put to the applicant that he could seek employment and live freely in Nepal. The applicant accepted that this was the case but said that the Maoists had open access to India. When the Tribunal put to the applicant that Maoist activity in India was largely restricted to the border areas and that Nepalese Maoists in India did not generally target members of the NCP, the applicant stated that the Maoists could find him in India. He also said he knew nothing about India and had no connections there (CB pp.81-82).
The Tribunal relied upon extensive country information in reaching its decision. In particular, the Tribunal relied upon country information which indicated that “citizens of Nepal can enter and reside in India without difficulty” (CB p.84). The Tribunal accepted that:
a)The applicant was generally a credible and truthful witness;
b)The applicant was a member of the NSU and his family had close connections with the NCP;
c)In September 2002 the Maoists demanded (through the applicant) money from the family business which it could not afford to pay;
d)The applicant had been badly beaten, treated in hospital and sustained permanent impairment as a result of the attack;
e)The applicant was targeted because he was a “well off business man” and because of his connections with the NSU and NCP; and
f)The applicant’s uncle played a role in the Maoists’ awareness of the applicant.
The Tribunal acknowledged that there was country information before it concerning random Maoist attacks against NCP supporters. The Tribunal accepted the applicant’s claims concerning his life in Nepal and his problems with the Maoists. However, the Tribunal concluded that it did not have to form a view about the question of whether the applicant would be persecuted by the Maoists in Nepal if he were to return to Nepal. The Tribunal formed the view based on extensive country information that the applicant could find effective protection in another country, namely India (CB p.88). The Tribunal noted that as a matter of “practical reality” (CB p.88), the applicant could enter and re-enter India and live freely in that country with “most of the rights and privileges available to the national of India and without any fear of being returned to Nepal” (CB p.88).
On the basis of the independent country information, the Tribunal rejected the applicant’s concern at a possible Maoist presence in India. The Tribunal found that except for organisational links and some border activities the violent activities of the Maoists did not extend into India. Nor was there any independent evidence that NCP members or supporters were targeted in India. Further, the Tribunal noted that India had promised to support Nepal in its fight about Maoists and terrorism (CB p.88). The Tribunal concluded that the applicant was not a person to whom Australia has protection obligations because he was likely to be given effective protection in another country.
Application for review of the Tribunal’s decision
On 5 August 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 setting out the following two grounds:
“B1.The Tribunal’s error:
a)by finding that India would accord him effective protection without investigating the attitude of the Indian authorities towards Nepalese citizens who, because of their medical conditions, are likely to become a burden on the state.
b)by ignoring an integer supportive of the applicant, his poor health, the Tribunal disregarded it and made a decision adverse to the applicant.”
The Law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
Applicant’s submissions
Mr M Newman, Solicitor, appearing for the applicant, filed written submissions immediately prior to the hearing. They key elements raised in those submissions were:
a)The only issue before this Court is whether Article 1E of the Refugee Convention had the effect that the applicant would not be entitled to the grant of a protection visa. Article 1E provides as follows:
“This Convention shall not apply to a person who is recognised by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.”
In the applicant’s case, the Tribunal’s position was that although he had not taken up residence in India he was by a particular treaty so entitled.
b)The applicant asserts that he is entitled to expect in circumstances where the Tribunal invokes such third party obligations in the form of the India Nepal Friendship Treaty, the Tribunal will at least consider whether the contracting party to such treaty will accept the applicant as a long term dependant, unable to work and in need of constant medical attention.
c)The applicant relies upon a passage in the judgment of Gleeson CJ in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002. The specific words upon which reliance is placed are highlighted:
“… or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review.”
d)This is not a case where the Minister can argue “it is for the applicant to make out his case” for the facts as recited by the Tribunal make specific reference to the applicant’s medical condition.
e)Article VII of the Treaty which says:
“The Government 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, participation in trade and commerce, movement and other privileges of a similar nature.”
The applicant asserts that it is not clear from Article VII above whether he would be entitled to receive medical treatment in India on a continuing basis even though he was treated there for one week. Certainly the Treaty provides for reciprocal rights of residence, ownership of property, etc. but whether health care is provided on a long term basis is far from clear.
f)The issue of rights is treated as being of some significance for the purpose of s.36 of the Act and Article 1E of the Refugee Convention which says:
“This Convention shall not apply to a person who is recognised by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.”
g)Emmett J in Thiyagarajah v Minister for Immigration & Multicultural Affairs said:
“It may be that some disabilities suffered by an alien would be so slight as to be negligible. That is to say, a disability which is minimal may not necessarily be sufficient to exclude the operation of Article 1E. That may raise a factual matter for consideration by the Tribunal in the appropriate case.
However, it is by no means self-evident that the disabilities suffered by the Applicant in France are minimal. They set the Applicant apart from a national of France. While there is no finding that the employment disabilities would have had any effect in the present case on the ability of the Applicant to derive an income, they are not insignificant. In that respect, at least, the Applicant is not recognised by the competent authorities of France as having the rights and obligations which are attached to the possession of nationality of France.”
The disability which affects the applicant is on a scale of things more than could be called slight.
Respondent’s submissions
Ms L Clegg of Counsel, appearing for the respondent, filed written submissions prior to the hearing. It was submitted that the grounds of review identified in the application effectively invited the Court to revisit the merits of the case. Counsel submitted that there was nothing in the Tribunal’s decision to indicate that the applicant raised his medical problems and attitude of the State toward him at the time the Tribunal raised with him the possibility of living freely and without impediment in India. It was submitted that the matter was not raised with the Tribunal by the applicant’s migration adviser.
It was submitted that the application might be taken to constitute a complaint on “considerations grounds”, namely the failing to take a relevant consideration into account: Judicial Review of Administrative Action (3rd Edition) per Aaronson, Dyer and Groves at 254. However, Counsel noted, considerations grounds only apply where the decision maker was bound to take into account the alleged omitted factor: Minister for Aboriginal Affairs v Peko Wallsend at 39. In the present case, Counsel submitted, that there was no obligation on the part of the Tribunal to take into account the impact of the applicant’s medical condition because:
a)The applicant did not raise this matter at the hearing when there was a clear opportunity to do so: see Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002; Assi v Minister for Immigration & Multicultural & Indigenous Affairs; Judicial Review of Administrative Action at 270 where it is said “the Federal Court is dubious as to whether there is much room for implying a duty to inquire into the Migration Act 1958 (Cth). If there is, it must be very undemanding”.
b)The question of the applicant’s medical condition is not relevant to considerations concerning the applicant’s ability to obtain effective protection in India.
Counsel submitted that there was no doubt that the Tribunal applied the correct and proper legal tests when giving consideration to the question of effective protection. Sections 36(3)-(5) of the Act are relevant provisions dealing with effective protection and are extracted as follows:
“Protection obligations
(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, if the non-citizen has a well-founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country.
(5)Also, if the non-citizen has a well-founded fear that:
(a)a 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;
subsection (3) does not apply in relation to the first-mentioned country.”
It was submitted that the question of proper construction of the above provisions has been the subject of a number of cases: Minister for Immigration & Multicultural Affairs v Al-Sallal; Minister for Immigration & Multicultural Affairs v Thiyagarajah; S115/00A v Minister for Immigration & Multicultural Affairs; Minister for Immigration & Multicultural Affairs v Applicant C (“Applicant C”); Kola & Anor v Minister for Immigration & Multicultural Affairs. Counsel contended that it was well established that the reference to s.36(3) to a “right” refers to a legally enforceable right: Applicant C per Stone J (with Gray and Lee JJ agreeing) at [56], [62], [65]. It was submitted that it has been held that the combination of the operation of the doctrine of effective protection together with the provisions of s.36(3)-(5) means that Australia does not owe protection obligations under the Convention to:
a)“a person who can, as a practical matter, obtain effective protection in a third country; or
b)a person who has not taken all possible steps to avail himself or herself of a legally enforceable right to enter and reside in a third country”: Applicant C per Stone J at [65].
It was submitted that it was evident that the Tribunal, in exercising its discretion, had these tests in mind when considering the question of effective protection in this case.
Counsel submitted that the Tribunal’s decision accurately sets out the principles which apply to effective protection considerations (CB pp.77-78). The Tribunal noted a summary of the dialogue which occurred with the applicant concerning the question of residing in India. Although the applicant expressed reservations concerning the Maoists’ access to India and their ability to find him there, the applicant conceded that he could live freely in India although he stated he “knows nothing about India” (CB pp.81-82).
The Tribunal ultimately relied upon independent country information to make its assessment concerning effective protection. It was submitted that the country information demonstrated the applicant had a legally enforceable right to enter and reside in India and, further, the applicant acknowledged this to be the case. Counsel contended that there was no evidence to suggest that the applicant attempted to take steps to avail himself of his legally enforceable right to enter and reside in India and therefore, in this case, both limbs of the test identified in Applicant C per Stone J have been satisfied.
It was submitted that there was nothing in the Tribunal’s decision to suggest that it applied the wrong test or asked itself the wrong question and accordingly, no error or law could be identified in its assessment of s.36(3)-(5) and the relevant principles concerning its construction.
Counsel noted that the Tribunal partly relied on country information to arrive at the conclusion that the applicant’s fear of persecution was not well-founded. It was submitted that this was a matter to which s.422B of the Act applies, the application for review of the delegate’s decision having been made on 15 December 2003. Counsel contended that insofar as the Tribunal was required to provide the applicant with information, it was only required to adhere to the provisions of s.424A of the Act: Minister for Immigration & Multicultural & Indigenous Affairs v NAMW per Merkel and Hely JJ at [139]. It was submitted that to the extent that it might be suggested that certain country information was not put to the applicant in accordance with the provisions of s.424A, s.424A(3)(a) applies to any such information in any event. Accordingly, it was submitted, the applicant could not point to a failure on the part of the Tribunal to accord him procedural fairness.
Reasons
The written and oral submissions made on behalf of the applicant stated there was one issue before the Court. That issue was whether Article 1E of the Refugee Convention had the effect that the applicant would not be entitled to a grant of a protection visa. The Tribunal decided that because of the existence of the India Nepal Friendship Treaty the Act required the applicant to avail himself of the operation of this Treaty and take up residence in India.
The 1950 Treaty of “Peace and Friendship” between the Governments of India and Nepal contained two key articles:
“Article VI
Each Government undertakes, in token of the neighborly friendship between India and Nepal, to give to the nationals of the other, in its territory, national treatment with regard to participation in industrial and economic development of such territory and to the grant of concessions and contracts relating to such development.
Article VII
The Governments of India and Nepal agree to grant, on a 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, participation in trade and commerce, movement that privileges of a similar nature.” (CB p.85)
The issue raised by the applicant was whether India would accept him in light of his special circumstances in that he was a long term dependent, unable to work, and in need of constant medical attention. The applicant asserted that Article VII of the Treaty made no reference to whether he was entitled to receive treatment in India on a continuing, long term basis.
Both parties made submissions to the Court on the operation of s.36 of the Act. Section 36 of the Act was amended by the insertion of subsections (3), (4) and (5) by the passage of the Border Protection Legislation Amendment Act 1999 (No. 160). The date of assent was
8 December 1999 and the date of commencement was immediate. These subsections are reproduced in paragraph 19 above.
In the respondent’s submissions (paragraph 20) above was a line of authority which addressed the question of proper construction and operation of s.36, including the original two provisions and the three new subsections introduced by the 1999 amendments. In Applicant C His Honour Stone J considered the term “right” referred to as a legally enforceable right in s.36(3) at [56]:
“This exchange supports the primary judge’s interpretation of s36(3). If the term “right to enter and reside in” had the meaning pressed by the Minister, namely the practical capacity to bring about a lawful permission to enter and reside legally in the relevant country, then, in order for an applicant to take all possible steps to take advantage of such a right, it would be necessary for the applicant to apply at least to all countries where it could be reasonably expected that the applicant would be granted a visa for entry and temporary or permanent residence.”
Further it was stated at [62]:
“In my opinion the primary judge was correct in his interpretation of s36(3). His interpretation is consistent with the way the provisions are referred to in the parliamentary debates and with the language of the section. Whether or not Senator Patterson’s comments (see [50] above) are directly relevant to the section, it is true that it imposes a tough new hurdle that, since 16 December 1999, must be overcome by applicants who fall within the terms of the section. However, as French J has pointed out (see [44] above), the section only identifies a subset of the circumstances in which return of a putative refugee will not involve a breach of Australia’s obligations under Article 33 of the Convention.”
His Honour noted at [65]:
“The combination of the amendments to s36 and the doctrine of effective protection leads to this position. Australia does not owe protection obligations under the Convention to:
(a)a person who can, as a practical matter, obtain effective protection in a third country; or
(b)to a person who has not taken all possible steps to avail himself or herself of a legally enforceable right to enter and reside in a third country.”
The question as to whether the applicant had availed or attempted avail himself of the opportunity to take up residence in India must be answered in the negative. This was not inconsistent with the findings of the Tribunal member. The Tribunal also noted that the applicant suffered serious injuries of both a physical and psychological nature and that he remained permanently impaired.
The Tribunal considered the obligation owed to the applicant and whether he was entitled to effective protection in a third country. The Tribunal set out the requirements of the Act in the reference material at the beginning of its decision and the reasoning of the Tribunal did not depart from those guidelines. The Tribunal considered further whether the threat in Nepal from Maoist rebels would be likely permeate the surrounding areas of India. While it was acknowledged there may be incursions across the border, the independent country information indicated these incursions were minor and not directly linked to any network operating in India. The Indian Government indicated to Nepal that it would assist in curbing the activities of the Maoists and would seek out terrorist activities. On that basis, the Tribunal believed that should the applicant avail himself of his right to reside in India he would be effectively protected by the Indian authorities from harassment or danger at the hands of Maoist rebels.
I have accepted the respondent’s submissions in respect of the protection obligations and their application. I have also accepted the respondent’s submissions in respect of the independent country information in that the Tribunal complied with the requirements of s.422 of the Act and that there had been no error on the part of the Tribunal in dealing with that material.
Conclusion
I am satisfied that no jurisdictional error on the part of the Tribunal has been identified. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 13 April 2005
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