SZGRA v Minister for Immigration
[2006] FMCA 1097
•15 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGRA v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1097 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – finding of right to enter and reside in India – failure to consider whether right legally enforceable – misapplication of s.36(3) of the Migration Act 1958 (Cth) – application allowed – matter remitted to Refugee Review Tribunal. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.36(2), 36(3), 91X, 483A United Nations Convention relating to the Status of Refugees 1951, Article 33 |
| Minister for Immigration v Applicant C (2001) 116 FCR 154 Minister for Immigration v Thiyagarajah (1998) 80 FCR 543 NAGV v Minister for Immigration (2005) 79 ALJR 609 SAAP v Minister for Immigration [2005] HCA 24 SZEAS v Minister for Immigration [2005] FMCA 1776 SZERD v Minister for Immigration [2006] FCA 560 SZFBO v Minister for Immigration [2006] FCA 291 SZFKD & Anor v Minister for Immigration [2006] FMCA 49 SZGBY v Minister for Immigration [2006] FCA 35 WAGH v Minister for (2003) 131 FCR 269 |
| Applicant: | SZGRA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1754 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 15 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 15 September 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Parish Patience Solicitors |
| Advocate for the Respondents: | Mr A Cox |
| Solicitors for the Respondents: | Phillips Fox Solicitors |
ORDERS
The Refugee Review Tribunal is joined as the second respondent.
The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.
A writ of certiorari shall issue directly to the second respondent, quashing the decision of the second respondent handed down on
31 May 2005 in proceedings N04/50175.
A writ of mandamus shall issue directly to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 24 September 2004.
The first respondent to pay the applicant’s costs and disbursements of and incidental to this application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1754 of 2005
| SZGRA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 5 July 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).
The Tribunal decision was made on 9 May 2005 and handed down on 31 May 2005, affirming a decision of the delegate of the first respondent made on 24 September 2004, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZGRA”.
The applicant has not sought to join the Tribunal as a party. However, given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].
Background
The Tribunal decision of Ms Ann O’Toole, reference N04/50175 contains the following background information. The applicant, who claims to be a citizen of Nepal, arrived in Australia on 18 August 2004. On 16 September 2004, he lodged an application for a Protection (Class XA) visa with the Department of Immigration under the Act. On 24 September 2004, a delegate of the Minister refused to grant a protection visa and on 16 November 2004, the applicant applied to the Tribunal for a review of the delegate’s decision.(Court Book (“CB”) 132)
According to the applicant’s protection visa application, he was at the time a 33 year old married man from Tanahun, Nepal. He was employed by the Red Cross Society of Nepal from January 1993 to October 1996. In November 1996, he was employed as a driver for Care Nepal until he left for Australia.(CB 134)
Applicant’s claims
A brief summary of the applicant’s claims are set out in the written submissions prepared by Mr Karp on behalf of the applicant. I adopt paragraphs 3 and 4 of those submissions for the purposes of this judgment:
3.His problems began in 2002 when he was stopped and assaulted by Maoists at a road block. The Maoists, who are opposed to any foreign interference in Nepal by NGOs or otherwise, became enraged when they learned that he worked for CARE. They intensified their assaults and demanded Rs 5,000 from him. He ignored this demand but received other, written demands for Rs 20,000. The written demands included that he join the Maoist forces or suffer the consequences (see the translations at CB 104, 106). Believing, apparently with good reason that the threats were to be taken seriously, he transferred to the CARE office in Kathmandu. But the Maoists threatened him there too, and in fear of his life he fled the country.
4.At hearing the Tribunal suggested to the applicant that he could relocate to India (CB 143.10). He said, in reply, that he was not safe from the Maoists in India. In a post hearing submission the applicant’s solicitor stated that India is not a signatory to the Refugees Convention and is not prevented from returning the applicant to Nepal contrary to the principle of non-refoulement contained in the Convention (CB 113.5).
Tribunal’s findings and reasons
A convenient summary of the Tribunal’s reasons is contained in the applicant’s written submissions prepared by Mr Karp and I adopt paragraphs 5 to 11 of those submissions:
5.The Tribunal accepted the applicant’s claims that he had a well founded fear of persecution at the hands of the Maoists in Nepal, and that the authorities in that country could not protect him (CB 154-5). It then moved at CB 155 to assess, “effective protection in India”, although it is not immediately clear what it meant by those words.
6.In that respect it identified the correct test – whether the applicant had a “legally enforceable right” to enter and reside in India (Minister for Immigration v Applicant C (2001) 116 FCR 154 – at CB 155.9). The information it drew on to establish that he had such a right was,
(a) Under the Treaty of Peace and Friendship ratified in 1950 the governments of India and Nepal agreed to “grant rights equal to those of its own citizens to the nationals of the other residing in its territory” (CB 145.5 referring to CB 276)
(b) This extends to the giving to each other’s nationals the same treatment as its own nationals with regards to participation in economic and industrial development, and residence, the ownership of property, participation in trade and commerce and movement and privileges of a similar nature (AC 145.8 referring to CB 276).
(c) Nepalese citizens do not need a passport to enter India (CB 146.2).
(d) DFAT advises that Nepalis may stay in India permanently (CB 146.9)
7.The Tribunal also summarised certain other information before it, as follows,
(a) There have been allegations that,
“Nepalese nationals receive lower wages than Indian nationals, “live with … ethnic abuse in the local community and police discrimination”, are disproportionately subject to unlawful imprisonment, and are generally unable to fully exercise their rights of domicile and employment under the Indo-Nepal Treaty of Peace and Friendship.” (CB 150.4)
(b) “While the Indo-Nepal Treaty of Peace and Friendship affords Nepalese nationals the right to live and work in India the Treaty does not bar India from expelling Nepalese citizens…” (CB 151.1).
(c) DFAT reports that,
“Indian Government provisions covering refusal of entry to India apply to all nationalities including citizens of Nepal.
India and Nepal do not have an extradition treaty but work together in the context of returning certain of each other’s nationals.”
8.The Tribunal continued, at CB 156,
“Where an applicant does not have a legally enforceable right to enter and reside in a third country, Australia will nonetheless not have protection obligations to that person if he or she is likely to be given effective protection in that country: S115/00A v Minister for Immigration (2001) 180 ALR 561).”
9.The Tribunal found that the applicant could avoid the harm he fears in Nepal by moving to India. It decided that he could enter and live in India with rights and privileges commonly available to Indian nationals without fear of being forced to return to Nepal. The Tribunal was also satisfied that the government of India was both willing and able to provide effective protection to the applicant from Maoists. It also found that it was reasonable for him to do so (CB 156-7).
10.The Tribunal summarised the situation by stating that,
(a) The applicant has a right to enter and reside in India,
(b) He has not taken all possible steps to avail himself of that right,
(c) It was not satisfied that he has a well founded fear of persecution in India,
(d) The “effective protection” principles summarised above (i.e. at [8]) apply.
11. It therefore affirmed the decision under review.
Application for review of the Tribunal’s decision
On 5 July 2005, the applicant filed an application for review under s.39B of the Judiciary Act. At the commencement of the hearing,
Mr Karp sought leave to file in Court an amended application which had been sent to the Court in draft form and a copy provided to the respondents. No objection was raised and leave was granted.
The grounds in the amended application are:
1. The Tribunal committed jurisdictional error by,
(a) Asking the wrong question and taking into account an irrelevant consideration, namely whether the applicant had, “effective protection” in India.
(b) Failing to address a relevant consideration, that being whether the applicant had a legally enforceable right to enter and reside in India, as opposed to a permission which may be granted pursuant to a bilateral “Treaty of Peace and Friendship”.
Submissions
Mr Karp, in his written submissions, contends that the Tribunal appears to have applied the “effective protection” principle, as per s.36(3) of the Act and referred at CB 156, in a seamless continuum. Mr Karp contends that the Tribunal erred in its application of the principle and the provisions of the Act. The “effective protection” principle is found in Minister for Immigration v Thiyagarajah (1998) 80 FCR 543 (“Thiyagarajah”). In Thiyagarajah a Sri Lankan national who had a well-founded fear of persecution in that country was found not to engage Australia’s protection obligations because he could return safely to France, his country of first asylum. This was, or so it was said, because returning Mr Thiyagarajah to France would not breach Article 33 of the United Nations Convention relating to the Status of Refugees 1951 (“the Convention”). Thiyagarajah is no longer good law, and was not at the time of the Tribunal decision. The High Court held in NAGV v Minister for Immigration (2005) 79 ALJR 609 (“NAGV”) that Australia had protection obligations to an applicant for a protection visa whether or not the applicant had access to a “safe third country”.
Mr Karp referred to the Tribunal decision under the heading ‘Findings and Reasons’ and in particular, the sub-heading ‘Effective Protection in India’, where the following passage appears:
The term “right” in sub-section 36(3) refers to a legally enforceable right: Minister for Immigration & Multicultural Affairs v Applicant C (2001) 116 FCR 154.(CB 155.9)
In Minister for Immigration & Multicultural Affairs v Applicant C at [65] per Stone J (“Applicant C”), with whom the other members of the Court, Gray and Lee JJ agreed, Her Honour summarises the law as it was at the time in 2001:
65.The combination of the amendments to s 36 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 member, 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.
Mr Karp submits that (a) is no longer good law, while (b) is.
The proposition contained in (a) above was based on the principle as stated in Thiyagarajah, which was overruled by the High Court in NAGV.
Mr Karp submits there is nothing wrong with the Tribunal’s analysis s.36(3) and (4) of the Act. However, the Tribunal made its first mistake in the following passage:
Where an applicant does not have a legally enforceable right to enter and reside in a third country, Australia will nonetheless not have protection obligations to that person if he or she is likely to be given effective protection in that country.(CB 156.3)
Mr Karp submits that this approach of the Tribunal followed Thiyagarajah which was overruled and is no longer good law.
Mr Karp submits that the High Court handed down NAGV on 2 March 2005, which was two months before this Tribunal decision of 9 May 2005. Hence this decision was wrong at the time it was made.
Mr Karp submits that the Tribunal then considered what the erroneous doctrine on ‘effective protection’ was:
Information from external sources considered by the Tribunal indicated that the applicant can enter and live in India, where the rights and privileges are commonly available to nationals of that country, without fearing he will be forced to return to Nepal.(CB 156.5)
The Tribunal did not state what information it relied upon, but it did canvass information fairly extensively in its decision. Mr Karp then drew the Court’s attention to other evidence referred to by the Tribunal, about Nepalese living in India.
Mr Karp submits that Nepalese citizens can be refused entry into India, which implies that there is no legally enforceable right to do so. The Tribunal made the following observation:
The Tribunal is satisfied that the government of India is willing and able to provide effective protection to the applicant. Information from external sources summarised above, indicates the authorities in India have monitored, controlled, and detained Nepalese Maoists living in India and expelled them from the country. It is the Tribunal’s view that the government of India has demonstrated it will not allow the Maoist insurgency to spread within its borders and the Nepalese who flee to India will be safe from the Maoist insurgency. The Tribunal is satisfied the government of India is willing and able to protect the applicant from Maoists in India and it is satisfied that the applicant is not at risk of harm by Maoists in India.(CB 156)
The Tribunal then considered the submissions made at the hearing and the adviser’s written submissions and drew the following conclusion:
The Tribunal has no evidence that the applicant has taken all possible steps to avail himself of his right to enter and reside in India.(CB 156.9)
Mr Karp submits that the country information which the Tribunal relied on has metamorphosised into an enforceable right. The Tribunal then stated:
With regard to the situation for him in India, the Tribunal finds that in exercising his right to enter and reside in India, the applicant would not face the obstacles experienced by some Nepalese in India, as discussed in the independent evidence.(CB 156-7)
The Tribunal then reached the conclusion:
Accordingly, the Tribunal finds that the applicant has the right to enter without a visa and reside in India and, in the absence of any independent evidence that India engages in refoulement with respect to non-Maoist Nepalese, that he would not be subjected to refoulement to Nepal.(CB 157.3)
Mr Karp submits that the Tribunal did not state whether this alleged right stems from the erroneous “effective protection” principle or s.36(3) of the Act. It is submitted that the Tribunal melded the two into a seamless whole. It is submitted that the Tribunal did not say that there was a legally enforceable right, although if the Tribunal did deal with issues arising under s.36(3) alone and applied that section correctly, one would expect it to make a finding referable to the test.
It did not do so. Mr Karp argues that what the Tribunal did was combine two principles. The first principle is erroneous and the other is correct and the Tribunal sought to apply an amalgamation of the two. It did not find, as it must, that if the applicant is to come within s.36(3) of the Act, he has a legally enforceable right to enter and reside in India.
In support of this argument, Mr Karp referred to SZFKD & Anor v Minister for Immigration [2006] FMCA 49 per Smith FM (“SZFKD”), which he submits is very similar, if not identical, to the matter before this Court. Although, there are differences in the country information, those differences are not material. Under the heading ‘The Tribunal’s s.36(3) reasoning’, His Honour at [37] said:
The Tribunal presented as an alternative reason for affirming the delegate’s decision its finding that "the Applicant has the right to enter and reside in India". This finding was given without any discussion of a body of authority which, at the time of its decision, had examined two pathways by which it was thought Australia might not owe protection obligations to a visa applicant. The first, and easiest pathway, was through the implication into s.36 (2) of a doctrine of "effective protection" in a third country (see Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 and subsequent cases). A right of entry and residence in the third country was not required, if third country protection was available as a "practical reality". This doctrine was subsequently overruled by the High Court in NAGV and NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 6.
Mr Karp drew the Court’s attention again to s.36(3) of the Act as set out in SZFKD at [38]. Mr Karp then refers to SZFKD at [40] which he submits applies to the case before this Court:
However, if the Tribunal did purport to apply s.36 (3), in my opinion, it overlooked that the section’s reference to "a right to enter and reside" has received a judicial interpretation which requires a factual finding on whether a claimant’s ability to enter a safe third country can be characterised as "an existing legally enforceable right" and not some lesser expectation of a discretionary permission to enter for residence (see Minister for Immigration & Multicultural Affairs v Applicant C (2001) 116 FCR 154, per Stone J at [62], with whom Gray and Lee JJ agreed, upholding the opinion of the primary judge expressed at [35]; also WAGH v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 269). As a result of failing to appreciate this, the Tribunal failed to consider and make essential findings on whether the "right" it found for the applicant answered the statutory description. This was a serious legal error, which in my opinion vitiated this part of the Tribunal’s reasons.
In SZFKD at [41], His Honour considered the two aspects of that Tribunal’s reasons that caused him to draw the inference that the Tribunal overlooked the nature of the right. The first was a complete absence of discussion of the legal basis for a citizen of Nepal to enter India. Again, Mr Karp submits that this issue is not relevant to the matter before this Court. At [43]:
The second reason for finding error by the Tribunal is the nature of the evidence to which the Tribunal referred under the heading "Refuge in India", and which apparently provided the evidentiary basis for its finding. The material to which it referred suggested a de-facto "ability" of some Nepali nationals to enter India and obtain refuge there. However, the legal framework under which such entry was achieved was not identified nor discussed. In my opinion, the evidence cited by the Tribunal clearly fell short of establishing a legally enforceable right to enter universally enjoyed by all Nepali nationals in the situation of the applicant (and compare, similarly, the more extensive country information found by a different Tribunal which I discussed recently in SZEAS v Minister for Immigration [2005] FMCA 1776 at [35]-[40]).
Then at [44], Smith FM found:
Counsel for the Minister argued that such a right was found in Art.7 of a 1950 Treaty of "Peace and Friendship" between the governments of India and Nepal. However, this records only an inter-governmental agreement to accord equal "privileges" to nationals when they are "in the territories of the other" (my emphasis). I cannot read into it an obligation on each government to allow free entry into India by all nationals of Nepal, and I think it would be exceptional to find such an obligation in a treaty of "peace and friendship". Moreover, absent some identified provision in Indian domestic law giving enforceable rights of entry to all Nepali nationals or evidence that the Treaty had legal effect under Indian domestic law, it would not have been open to the Tribunal to find such a right merely from a bilateral treaty obligation between governments.
Mr Karp submits that His Honour Smith FM found, looking at the Treaty of Peace and Friendship and the Tribunal’s findings, that there had been no finding of a legally enforceable right. There was also no such finding in the matter before this Court. Further, that the Treaty does not appear to provide for such a legally enforceable right of entry and that the decision in SZFKD should be followed.
Mr Cox, for the respondents, said that His Honour in SZFKD at [41] spoke about the two aspects of that Tribunal’s decision which led to the conclusion that the Tribunal overlooked the nature of the right of entry in India. The first was a complete absence of any discussion of the legal basis of the ability of a citizen of Nepal to enter India for residence, including the effect of s.36(3) of the Act. Mr Cox submits that the Tribunal decision before this Court is quite different to the decision of the Tribunal in SZFKD. In the case before this Court, the Tribunal extensively reproduced and referenced country information showing the legal basis for citizens of Nepal to enter India for residence. The decision also includes references to the operation of s.36(3) of the Act. The second reason given by Smith FM in SZFKD was that the real framework under which such entry was achieved was not identified nor discussed.
The Tribunal dealt with whether the applicant has a legally enforceable right to enter and reside in India. In the matter before this Court, the Tribunal identified the Treaty and its provisions. It identified country information and found statements that Nepalese can enter and live in India and have the same privileges as Indian citizens. It also found as a matter of fact that the applicant did have a legally enforceable right to enter and reside in India. In SZFKD, Smith FM referred to SZEAS v Minister for Immigration [2005] FMCA 1776 (“SZEAS”). SZEAS commented on the concept of “effective protection” from [31] onwards. That Tribunal also referred to the decision of Thiyagarajah: SZEAS at [33]. Mr Cox submits that the reference to Thiyagarajah distinguishes SZEAS from this case because that Tribunal did purport to apply the principle in Thiyagarajah.
Further that, SZEAS can be distinguished from this case as found at [42]:
I can see only one possible reading of the above reasoning. The Tribunal in its opening sentences referred back to the alternative pathways under s.36 (3) and Thiyagarajah. However, it clearly found it unnecessary to make any findings of fact as to the existence of a legally enforceable right of the applicant to enter India. Rather, it followed the easier pathway of looking at the "practical realities" so as to find ‘effective protection’ under the doctrine of Thiyagarajah. It is entirely understandable that it followed that path.(emphasis added)
Mr Cox argues that this Tribunal made findings of fact in the context of a discussion of the relevant issues.
Mr Karp addressed issues which arose from the written submissions of Mr Cox and the construction of s.36(3) of the Act. Mr Karp referred me in particular to paragraph three of Mr Cox’s submissions which states:
…section 36(3) provides that protection obligations are not owed to an applicant if one of two conditions exist:
3.1 First, the applicant has not taken all possible steps to avail himself of a right in relation to a country.
3.2 Second, that right is a legally enforceable right to enter and reside in that country.
Mr Karp submits that the above two conditions cannot be read separately, but as a whole. The taking of all possible steps to avail oneself of a right to enter and reside in a country cannot be divorced from the country itself. A person cannot be expected to take steps to avail themselves of any right they may have to every country in the world and hope that one country will allow them access, without an already existing legal right. Without this, there is no duty on a refugee or potential refugee to avail him or herself of any other right he or she has for that country. Section 36(3) of the Act has to be read as a composite whole.
Mr Karp argues that to the extent that Mr Cox relies upon the applicant failing to make all possible steps to avail himself of the right to residence in India, that submission must fail as the Tribunal did not find that India was a country which would legally allow him to enforce a right of entry.
Mr Cox also said that the Federal Court declined to follow Smith FM in SZFKD. First, in SZFBO v Minister for Immigration [2006] FCA 291 at [26], Emmett J declined to consider the precise terms of the Treaty and whether this would lead the Court to a different conclusion regarding the applicant’s right to enter and reside in India. Mr Karp submits that His Honour considered that there were three separate independent bases for the Tribunal decision. One was the conclusion that the Tribunal was not satisfied that the applicant had a genuine fear of persecution. That was enough for the applicant’s application to fail. His Honour then said at [24] and [26]:
24.…However, it is also clear that the Tribunal accepted that the appellant has a right to enter and reside in India, and that the appellant has not taken all possible steps to avail himself of that right. That, of itself, is sufficient to disentitle the appellant to a protection visa, by the operation of s 36 (3) of the Act.
26.The appellant also raised the question of the precise terms of the treaty between Nepal and India, without explaining how that would involve a different conclusion as to whether or not the appellant has right to enter and reside in India. That reasoning, involving the application of s 36 (3), would be sufficient to overcome any concern as to possible non-compliance with s 424A. However, I also consider that, on a fair reading of the Tribunal’s reasons, the conclusion that any persecution of the appellant or his family is not for a Convention reason was reached independently of the Tribunal’s conclusion that the appellant does not have a genuine fear of persecution.
Mr Karp submits it is apparent that Emmett J did not consider and did not feel it necessary for him to consider the legal operation of s.36(3) of the Act. The applicant in that case was unrepresented and there is no indication that Applicant C or WAGH v Minister for (2003) 131 FCR 269 was brought to His Honour’s attention. There was a discrete factual basis for His Honour’s decision which does not arise in the case before this Court.
The second decision is SZERD v Minister for Immigration [2006] FCA 560 where Edmonds J held that the Tribunal’s conclusion – that the applicant had a right to reside in India based on the provisions of the Treaty – was open to it on the facts. His Honour observed at [19] that the Tribunal’s approach was entirely in accordance with the terms of the Convention. Justice Edmonds in considering the fourth ground of the appeal, a failure by the Tribunal to afford procedural fairness and act in accordance with the Convention, referred to the Tribunal’s primary finding which rejected the applicant’s claim that he was persecuted and threatened by Maoists. His Honour also found that the Tribunal made an alternative finding (at [18]):
…if the appellant fears being pursued by the Maoists, he has the right to reside in India and could reasonably be expected to live there.
At [19] His Honour stated:
The conclusions that the Tribunal drew were ones that were open to it on the material before it. Those conclusions led inevitably to a finding that the Refugees Convention does not apply to the appellant. The Tribunal’s approach was entirely in accord with the terms of the Convention.
Mr Karp submits that His Honour does not address s.36(3) of the Act and it was irrelevant to his decision. SZERD v Minister for Immigration is therefore distinguishable from the present matter before this Court.
The third case cited by Mr Cox was SZGBY v Minister for Immigration [2006] FCA 35 (“SZGBY”) at [9], where Moore J observed that the Tribunal’s construction of the Treaty was a question of fact and not one of legal error going to jurisdiction. In any event, His Honour held that the construction adopted was open to the Tribunal on the facts.
Mr Karp drew the Court’s attention to SZGBY at [9]:
As to the third matter, it was submitted that the Tribunal misconstrued the Treaty between India and Nepal which, it was argued, did not entitle the appellant, a Nepalese citizen, to reside in India. Reliance was placed on the observations of Lee J in WAGH v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 269 at 278, which might be viewed as indicating that it is necessary for there to be a prior acceptance or acknowledgement by a third country to enliven s 36(3) of the Act. The short answer to this argument is that it was not part of the appellant’s case that he could not enter and reside in India. To the contrary, he indicated in his application for a protection visa that he could enter or reside in India. This proposition was repeated at the Tribunal at hearing. While it appears his position on this issue wavered at the hearing, in a written submission made after the hearing, it was not suggested that he could not enter and reside in India. Even if the Tribunal erred in construing the treaty (probably a question of fact in any event), it was open to it to make the finding it did, namely that the appellant could enter and reside in India.
Mr Karp submitted that Mr Cox relied on His Honour indicating that the construction of the Treaty was a question of fact. However
Mr Karp’s argument was that although His Honour said it was probably a question of fact, it was an issue that he did not have decide. Mr Karp argues that SZGBY is distinguishable on the grounds that the applicant in that case indicated that he could go to India and his entry was not at issue.
Mr Cox in response indicates that it was not part of the applicant’s case in this matter that he could not enter and reside in India. Mr Cox draws the Court’s attention to the Tribunal’s reasons under the heading ‘Claims and Evidence’ and sub-heading ‘Tribunal Hearing 22 February 2005’ where the following exchange between the Tribunal member and the applicant is recorded:
I asked the applicant if he had considered relocating to India. He replied that his first preference was Australia. He stated that in India there are problems also with the Maoists.(CB 143.9, emphasis added)
Mr Cox submits that the Tribunal dealt with the Maoists being in India and whether that would pose any threat to the applicant. The Tribunal’s decision under the heading ‘Findings and Reasons’ records:
The Tribunal is satisfied that the government of India is willing and able to provide effective protection to the applicant. Information from external sources summarised above, indicates the authorities in India have monitored, controlled, and detained Nepalese Maoists living in India and expelled them from the country. It is the Tribunal’s view that the government of India has demonstrated it will not allow the Maoist insurgency to spread within its borders and the Nepalese who flee to India will be safe from the Maoist insurgency. The Tribunal is satisfied the government of India is willing and able to protect the applicant from Maoists in India and it is satisfied that the applicant is not at risk of harm by Maoists in India.(CB 156.7)
Mr Cox submits that as in SZGBY the applicant in this case was not arguing before the Tribunal that he could not enter and reside in India. It is submitted that whether the Tribunal erred in construing the Treaty is a question of fact which is open to the Tribunal to find as it did in the matter currently before this Court. The Tribunal decision and the specific words used within it need to be read context. Namely:
a)The Tribunal did reproduce the relevant sections of the Act, being s.36(3), (4) and (5). Prior references to NAGV concern the old s.36 of the Act, being s.36(2). Thiyagarajah involved an interpretation of that section and that case was not mentioned. The Tribunal in this case dealt with the new s.36(3), (4) and (5) of the Act. Mr Cox submits that the Tribunal applied the correct legislation.
b)The applicant did not raise before the Tribunal an inability to enter and reside in India. The Tribunal, after stating the correct test, then referring to country information and found that the applicant could live in India with the rights and privileges commonly available to nationals of that country without fearing he would be forced to return to Nepal.(CB 156.5)
c)Article VII of the 1950 Treaty of “Peace and Friendship” between India and Nepal states:
…to the nationals of one country in the territories of the other the same privileges in the matter of residence…(CB 145.9)
The US Library of Congress, Country Studies, Nepal: Relations with India states:
…to grant rights equal to those of its own citizens to nationals of the other residing in its territory.(CB 145.5)
d)The Belgian Ministry of Interior Affairs, Office of Commissioner General for Refugees and Stateless Persons document, India: A safe third country states:
Until now [2002] Nepalese citizens do not need a passport to travel to India and stay there, the result of an agreement between both countries which allows for free passenger travel.(CB 146.3)
e)A Department of Foreign Affairs and Trade 2002 Report No. 211 states:
The Tribunal noted DFAT advice indicating Nepalese citizens do not have an automatic right to Indian citizenship but may reside there permanently.(CB 146.9)
The report also notes that:
Nepalese citizens do not require a visa to enter India.(CB 147.2)
In “Conversations: India must show genuine respect to Nepal”, Times Asia, 11 January 2002:
The ability of Nepalese nationals to exercise these rights appears to have been largely unhindered in the past; Nepalese are free to live and work in India without visas or permits and around four million do so.(CB 148.9)
f)The Times of India, “India, UNHCR declare truce on refugee status for Nepalese”. (CB 151)
Mr Cox submits that this was the context in which the Tribunal’s stated that it had no evidence that the applicant took all possible steps to avail himself of his right to enter and reside in India. Mr Cox argues that it can be inferred that the Tribunal was referring to a legally enforceable right to enter and reside; and that the Tribunal had a large amount of information which informed it that the applicant could do so.
Conclusion
I acknowledge the detailed submissions made by representatives for both parties. Although it was suggested that the case before this Court is similar if not identical to SZFKD, I do not fully accept that proposition. The reasoning in this matter appears to have applied the “effective protection” principle and the divisions of s.36(3) of the Act as an amalgam, or as expressed by Mr Karp, a seamless continuum. Thiyagarajah was overruled prior to the Tribunal’s decision in this matter. However in the Tribunal’s ‘Findings and Reasons’ under the heading ‘Effective protection in India’ (reproduced at [12] above), there appears to be a convergence of the two concepts. Although Thiyagarajah was not specifically referred to, the concept of effective protection was. As the Tribunal’s reasoning is not clear, it does raise the question whether it appropriately applied the principle in Thiyagarajah.
This doubt is reinforced in the last paragraph of the Tribunal’s ‘Findings and Reasons’ where the two concepts merge again.(CB 154.5) Similar to the error that arose in SZFKD, this Tribunal did not refer to Thiyagarajah. However, the term “effective protection” was used in the context of the doctrine that was established in Thiyagarajah. As I have said, the doctrine was referred to in conjunction with s.36(3) of the Act or at least as a compatible doctrine.
The second issue is whether the applicant, a Nepalese citizen, has a legally enforceable right to enter and reside in India. The Tribunal reached the conclusion that the applicant has this right, but it did not in any way identify whether this alleged right stems from the erroneous application of the effective protection principle in Thiyagarajah or s.36(3) of the Act. The Tribunal made no reference to the test or its application. The Tribunal’s finding at CB 157.5 that “the “effective protection” principles summarised above apply to the applicant”, is a jurisdiction error.
I note the cases relied upon by Mr Cox, which he argues overturned SZFKD. However, each of those cases (SZFBO v Minister for Immigration, SZERD v Minister for Immigration and SZGBY ) can be distinguished from the case before this Court. Mr Karp draws that distinction in each example as set out at [28], [29] and [31] above.
I find on the material to which the Tribunal referred that it would not have been open to it to find that the applicant had a “right to enter and reside in” India as an “existing legally enforceable right”.
The Tribunal decision’s application of s.36(3) of the Act appears to have been influenced by the “effective protection” principle found in Thiyagarajah and is therefore vitiated by jurisdictional error.The applicant is entitled to the relief sought.
I am satisfied that an order for costs should be made in this matter.
I order that the first respondent pay the applicant’s costs and disbursements of and incidental to this application.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 14 September 2006