SZHYB v MIMIA

[2007] FMCA 311

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHYB v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 311

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal erred in consideration of a right to enter and reside in another country.

Migration Act 1958, s.36

Applicant A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8
Minister for Immigration & Multicultural & Indigenous Affairsv Al Khafaji (2004) 208 ALR 201
Minister for Immigration & Multicultural & Indigenous Affairs v QAAH of 2004 [2006] HCA 53
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration & Multicultural & Indigenous AffairsvVSAF of 2003 [2005] FCAFC 73
Minister for Immigration & Multicultural Affairs v Applicant C (2001) 116 FCR 154
Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543
MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94
NAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 76
NAGV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 79 ALJR 609
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 230 ALR
SZFKD & Anor v Minister for Immigration & Multicultural Affairs [2006] FMCA 49
SZGBV v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 35
SZGRA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 1097
SZHWI v Minister for Immigration & Multicultural Affairs [2006] FMCA 1924
V872/00A v Minister for Immigration & Multicultural Affairs (2002) 190 ALR 268
VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965
VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459
W389/01A v Minister for Immigration & Multicultural Affairs (2002) 125 FCR 407
WAGH v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 269
WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277

Applicant: SZHYB

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG3800 of 2005

Judgment of: Barnes FM

Hearing date: 12 December 2006

Date for Last Submission: 9 January 2007

Delivered at: Sydney

Delivered on: 22 March 2007

REPRESENTATION

Applicant: In person

Counsel for the Respondents: Ms S. Sirtes

Solicitors for the Respondents: Phillips Fox

ORDERS

1. That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3800 of 2005

SZHYB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 6 December 2005 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. 

2. The applicant, who is a citizen of Nepal, arrived in Australia on 6 June 2005 and applied for a protection visa.  In connection with his protection visa application the applicant claimed that he had worked as a cook in a hotel in Kathmandu.  He claimed that he had refused a request from the Maoist underground rebels that he work for them as a cook but that subsequently he and his father had been kidnapped and held by the Maoists in the jungle.  He had been required to work for them as a cook.  He claimed that he escaped after “a months” and left Nepal for Thailand in April 2004.  He returned to Nepal twice to see his sick mother.  He claimed that while in Thailand he received a telephone call from the man who had kidnapped him in Nepal who threatened he would be killed unless he returned and worked for the Maoists.  He claimed that he had not seen his father since he had escaped from the Maoists and did not know whether he was dead or alive.  The applicant claimed that if he returned to Nepal he feared that the Maoist rebels would kill him because he escaped when they wanted him to work for them. 

3. The application was refused and the applicant sought review by the Tribunal.  He attended a Tribunal hearing. 

4. In its reasons for decision the Tribunal recorded the oral evidence of the applicant at the hearing and elaboration of his claim that he would be killed by the Maoists were he to return to Nepal because he had been working for them in the past. 

5. The Tribunal referred to independent evidence in relation to the current political situation in Nepal and effective protection in India. 

6. In the findings and reasons part of its decision the Tribunal summarised the applicant’s claims as follows:

   The applicant claims to fear harm from the Maoists whom he claims had killed his maternal uncle in India, kidnapped him as well as his father whom they had subsequently killed, that he had been made to work as a cook for them.  He claims he injured two guards when he escaped and since then they have been harassing the applicant and his family, despite the applicant having sought refuge in Bangkok.

   He further claims that the government cannot protect its citizenry from the Maoists and that the Maoists would harm him in India were he to seek refuge there.

7. The Tribunal accepted independent evidence that the political situation in Nepal was marked by violence and instability and also that Maoists had committed human rights abuses and targeted those whom they considered to be their enemies.  However it did not accept there was a real chance the applicant would face serious harm for a Convention reason were he to return to Nepal.  It gave the following reasons:

   The Tribunal finds as implausible, and does not accept, that the applicant would be kidnapped by Maoists and made to work as a cook despite the fact that he has no sympathy for them and their cause.  Given the desire of the Nepalese authorities to capture Maoists, the Tribunal finds as implausible, and does not accept, that the authorities would have ignored his mother’s pleas for assistance, particularly as she would have been able to assist them in identifying the Maoists allegedly harassing her.  The Tribunal further finds as implausible, and does not accept, that the Maoists would have traced the applicant to Bangkok and continued to harass him there, given the very minor role, an escaped cook, that the applicant had played. 

8. The Tribunal continued that in light of the those findings it found that the applicant had fabricated his claims and that he did not have a well-founded fear of persecution for a Convention reason in Nepal.

9. The Tribunal stated that “for the sake of completeness” it found that the applicant had a right to enter and reside in India. It did not accept the applicant’s submission (for which there was no supporting evidence) that very few of the Nepalese Maoists in India were actually returned to Nepal by the authorities. It found that India was a vast country where the applicant could live safely. It concluded that the applicant did not have a well-founded fear of being persecuted for a Convention reason in India or of being returned from that country to Nepal. Accordingly the Tribunal found that Australia did not owe protection obligations to the applicant, referring to s.36 of the Migration Act 1958 (Cth).

10. The applicant sought review of the Tribunal decision by application filed in this Court on 27 December 2005.  He relies on an amended application filed on 2 June 2006.  There is one generally expressed ground that the Tribunal committed jurisdictional error. The amended application contains particulars which make it clear that there are in fact three grounds of review raised by the applicant. 

Factual findings issue

1. The first ground is that the Tribunal’s finding was “based on impractical imagination [rather] than ground reality of Nepal”.  The particulars refer to the Tribunal conclusion that it did not accept there was a real chance the applicant would face serious harm for a Convention reason were he to return to Nepal and its findings as to the implausibility and fabrication of his claims.  The applicant took issue with the Tribunal’s factual findings, contending that in finding that it did not accept that he was made to work as a cook because he had no sympathy for the Maoists, the Tribunal did not attempt to understand the nature, scope and effect of the Maoists insurgency in Nepal.  It was contended that the Tribunal was under a duty to find out about such matters and that it should have had regard to information that Maoists are engaged in forceful extortion, kidnapping and using kidnapped people in their labour camp.

2. Insofar as the applicant takes issue with the factual findings of the Tribunal or the weight to be given to particular items of country information, such matters are matters for the Tribunal and do not establish jurisdictional error.  Moreover, as contended for the first respondent, even if the factual findings of the Tribunal were incorrect, that would not in and of itself, be sufficient to constitute jurisdictional error (see MZWBW v MIMIA [2005] FCAFC 94 at [28]; Applicant A169 of 2003 v MIMIA [2005] FCAFC 8 at [31] and NAAP v MIMIA [2003] FCAFC 76 at [37].

3. The applicant also contended that the Tribunal’s findings in relation to police assistance were illogical and illegal and not consistent with the “ground reality”.  It was submitted that there was available country information which the Tribunal could have considered about the fact the authorities were unable to provide protection to the people, albeit the applicant did not provide such information to the Tribunal. 

4. Again however, this claim takes issue with the factual findings of the Tribunal and the weight that it gave to particular items of country information.  It does not establish jurisdictional error.  There is nothing to suggest that the applicant put information before the Tribunal to support the claims which he now makes in relation to the situation in Nepal and the ability of the police to provide protection.  Moreover the Tribunal finding in relation to the police was a rejection of the plausibility of a claim that the authorities ignored his mother’s plea for assistance – not a finding about the ability of the police to provide protection. 

5. The applicant also contended that the Tribunal decision did not take into account how Maoists operated around the world and his knowledge of their activities in relation to his claim that he was followed to Bangkok.  However, as expressed, this claim does not establish jurisdictional error.  The Tribunal addressed the applicant’s claim that the Maoists traced him to Bangkok and continued to harass him, but did not find it plausible given the minor role as an escaped cook, that the applicant had played.  It also rejected his claims as fabricated.  The applicant’s disagreement with the Tribunal’s factual finding does not establish jurisdictional error. 

6. More generally, this is not a case in which the Tribunal was under a duty to make further enquiries in the manner that appears to be contended for by the applicant.  There is no suggestion that the applicant put independent information before the Tribunal in support of his claims or that the Tribunal undertook or was otherwise under an obligation to make further enquiries.  Beyond this, the weight to be given to particular items of country information is a matter for the Tribunal.  No jurisdictional error is established on the basis contended for under this particular. 

7. Nor is it established that the Tribunal failed to have regard to any relevant consideration in the sense of any integer of the applicant’s claims.  As submitted for the first respondent, his claims were in essence that the Maoists had kidnapped him to work as a cook (not because of his relationship to his uncle or father) and would kill him because he had worked for them and escaped.  The Tribunal addressed these claims, in particular in the finding that it was implausible that the applicant would be kidnapped and made to work as a cook for the Maoists despite his lack of sympathy for their cause or that the Maoists would have traced the applicant to Bangkok and continued to harass him there given the minor role (“an escaped cook”) he had played. 

8. The Tribunal not only did not accept that there was a real chance that the applicant would face serious harm for a Convention reason, but also found (in light of the findings of implausibility) that the applicant had fabricated his claims and did not have a well-founded fear of persecution for a Convention reason in Nepal.  Credibility is a matter for the Tribunal par excellence:  see Re MIMA; Ex parte Durairajasingham (2000) 168 ALR 407. While, as McHugh J stated at [67], detailed reasons for such a finding are not required, in this case the Tribunal findings were open to it on the material before it for the reasons it gave. No jurisdictional error is established on the basis contended for in the first particular.

Knowledge of Nepal issue

1. The second ground (expressed as a particular) is that the Tribunal did not follow UN guidelines and relevant laws in determining the application.  Under this particular it is contended that the Tribunal had little knowledge about Nepal and hence was not able to make a correct decision.  It was suggested that the Tribunal did not have a real understanding of the situation in Nepal and the situation of the people and that the decision was made with “inappropriate research and knowledge of reality in Nepal”. 

2. First, it is notable that in fact the Tribunal accepted that the political situation in Nepal at the relevant time involved violence and instability and that Maoists had perpetrated human rights abuses and targeted perceived enemies.  Such finding is consistent with the applicant’s claims about the political situation in Nepal.  In fact it appears that the applicant takes issue with the Tribunal factual findings and its rejection of his claims on the basis of implausibility and the consequential adverse credibility finding.  However, as set out above, no jurisdictional error is established in the manner contended for by the applicant.  Further, insofar as the applicant seeks merits review, merits review is not available in this Court. 

Right to enter and reside in India issue

1. The third particular is that the Tribunal’s finding in relation to the applicant’s right to enter or reside in India was “illegal”, that the applicant did not have a legally enforceable right to enter and reside in India and that the 1950 Treaty of Friendship which granted reciprocal rights to the nationals of each country would not itself provide an automatic and legal right to enter and reside in India.  The applicant relied on a decision of Federal Magistrate Smith in relation to a Nepalese protection visa applicant (SZFKD & Anor v MMIMA [2006] FMCA 49), in which his Honour stated (at [44]):

   Counsel for the Minister argued that such a right [to enter and reside in India] 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-government 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.

2. It was contended for the applicant that this decision was sufficient to establish that he did not have an enforceable right to enter and reside in India. 

3. Counsel for the first respondent submitted that the decision in SZFKD ought not to be followed or should be distinguished.  It was acknowledged that in SZFKD at [43] Federal Magistrate Smith had found that “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” but contended that the benchmark applied by his Honour was overly onerous.  It was noted that in MIMIA v QAAH of 2004 [2006] HCA 53 at [39], [40] and [46] the majority of the High Court confirmed that there is no onus upon any party to establish an evidentiary point in inquisitorial tribunal proceedings.

4. It was submitted that even if the decision in MIMIAv Al Khafaji (2004) 208 ALR 201 was the basis for SZFKD, SZFKD had put the requirements too high and should not be applied in this instance.  In Al Khafaji Gummow J had suggested (at 206) that if an applicant had a right to enter and reside in a third country any “correlative duty” must be that of the third country “presumably” owed under the municipal law of the country in issue to the applicant personally and that it must be shown to exist by evidence in an acceptable form to the Australian decision-maker.  However it was said to be important to note that his Honour did not suggest that “right” meant a “legally enforceable right” but rather a right with a correlative “duty”. 

5. On this basis it was contended for the respondent that the true question was whether the “duty” of the third country in question (in this case India) was shown to exist by evidence in an acceptable form to the decision-maker.  In this instance there was material before the Tribunal (referred to in its decision) which included 2002 information from the US Library of Congress that Nepal and India have agreements that enable citizens of Nepal to live in India, the results of a 2002 fact-finding mission in relation to these arrangements, information that the Indian government will not tolerate Nepalese Moaists, 2005 information from the Indian Bureau of Immigration about the ability of Nepalese citizens to fly directly to India from Australia and legally reside in India as well as DFAT advice of 28 September 2005 about the rights of a Nepalese citizen to enter and reside in India provided he or she was in possession of a valid Nepalese passport.  It was submitted that this material provided sufficient evidence for the Tribunal to find that there was a “right” for the applicant to enter and reside in India and/or that there was a correlative duty.  It was submitted that the additional independent country information considered and utilised by the Tribunal in this instance (in contrast to the situation in SZFKD) meant that it was open to the Tribunal to conclude that the Treaty of Friendship was honoured by India, so that the “duty” to which Gummow J referred in Al Khafaji could be properly understood to exist.

6. Issue was taken with the extent to which the reasoning in SZFKD purported to require the Tribunal to investigate the “question”. Federal Magistrate Smith stated at [45]:

   In my opinion, on the material to which the Tribunal referred, it would not have been open to it to find that the applicant had a “right to enter and reside in” India in the sense of an “existing legally enforceable right”. This reinforces my opinion that the Tribunal failed to investigate and consider the making of such a finding. Its purported application of s.36(3) was therefore vitiated by jurisdictional error. [emphasis added]

7. The first respondent submitted, and I accept, that there is no positive obligation imposed on the Tribunal to investigate claims (see MIMIA v SGLB (2004) 207 ALR 12 at 43 and MIMIAvVSAF of 2003 [2005] FCAFC 73 at [20]) and that, as Gummow and Hayne JJ made clear in SGLB, while the Tribunal has the power to obtain further information, it does not have an obligation to investigate or to consider utilising such permissive statutory powers that might enable it to do so (such as s.427(1)(d)) and also see VCAK of 2002 v MIMIA [2004] FCA 459 at [27]; WAGJ v MIMIA [2002] FCAFC 277 at [21] and [24] – [25] and W389/01A v MIMA (2002) 125 FCR 407 at [74] – [78].

1. Such general principles are clear.  I am satisfied however that in SZFKD Smith FM was not addressing or proposing a duty to investigate the applicant’s claims, but rather was addressing the issue of whether the Tribunal was obliged “to consider and make essential findings on whether the ‘right’ it found for the applicant answered the statutory description” (at [40]).  The statement that the Tribunal had failed to consider and make such “essential findings” was said to be a result of the Tribunal failing to appreciate that there must be “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.” (at [40]).

2. When his Honour subsequently referred to the Tribunal’s failure “to investigate and consider the making of such a finding” (at [45]) this was not a proposal that the Tribunal had to investigate the applicant’s claims, but rather an observation that on the material to which that Tribunal referred, it would not have been open to find that the applicant had a right to enter and reside in India in the sense of an existing legally enforceable right.  This factor reinforced his Honour’s already expressed opinion (at [40]) that the Tribunal “failed to consider and make essential findings on whether the ‘right’ it found for the applicant answered the statutory description”.  It was in this sense that his Honour referred to a Tribunal failure to “investigate and consider the making of a finding”. (at [45]) 

3. While this aspect of the respondent’s submissions does not provide a basis for distinguishing or not following SZFKD, there are a number of distinguishing factors which make it unnecessary to determine whether the decision should be followed.  First, it is notable that, as in SZGBV v MIMIA [2006] FCA 35, it was no part of the applicant’s case before the Tribunal that he could not enter and reside in India. As in SZGBV, in his protection visa application (Q 59) the applicant stated that he had a right to enter and reside in India.  There is nothing in the Tribunal account of the hearing to suggest that the applicant claimed (or that a claim arose “squarely” on the material before the Tribunal) that he did not have a right to enter and reside in India.  Rather, his claim was that he believed he would be harassed by Nepalese Maoists in India.  Hence the issue that was addressed by the Tribunal was whether the applicant had a well-founded fear of persecution in India. 

4. The Tribunal also found that there was no real chance the applicant would be returned to Nepal. This may indicate the Tribunal was making a finding under s.36(3) of the Migration Act. It provides that:

   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.

5. However, as in SZHWI v MIMA [2006] FMCA 1924 at [26], there is a further distinction between the circumstances in SZFKD and this case based on the material before the Tribunal.  The Tribunal had before it further and more recent country information than that before the Tribunal in SZFKD (in particular the September 2005 information from the Department of Foreign Affairs and Trade).  This material was such that in SZHWI McInnis FM accepted that SZFKD (where there was reference only to the 1950 Treaty of Friendship between India and Nepal) was distinguishable.  Similarly this is not a case in which it can be said that there was no evidentiary basis for a finding that the applicant had a right to enter and reside in India. 

6. However in SZFKD Smith FM referred to MIMA v Applicant C (2001) 116 FCR 154 at [62] per Stone J with whom Gray and Lee JJ agreed and WAGH v MIMIA (2003) 131 FCR 269, in finding that the reference to “a right to enter and reside” in s.36(3) required 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”  (at [40]).  As discussed by McInnis FM in SZHWI, there may be “some divergence of views” expressed by the Federal Court concerning the meaning of the concept of a “right” to enter and reside (compare Applicant C and V872/00A v MIMA (2002) 190 ALR 268 per Hill J at [54] to [57]) although these authorities do not go so far as to require the Tribunal to refer to a specific provision in the domestic law of the country in issue to find a right within s.36(3) (see Applicant C per Stone J at [60] recognising that “a right of entry … may arise other than by grant of a visa” and see SZHWI at [30] – [32]).

7. In fact it is not clear that in SZFKD Smith FM was suggesting that this was essential, but rather that in that case, in the absence of identification of some such provision or evidence that the 1950 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” (at [44] emphasis added).  In contrast in this case some evidence of more than a ‘mere’ treaty obligation was before the Tribunal to provide a basis for its finding. 

8. In any event, as in SZFBO v MIMIA [2006] FCA 291, there was a separate independent basis for the Tribunal decision. Hence, even if the Tribunal did err in its findings in relation to a right to enter and reside in India (and I note that it did not address the issue of whether the applicant had taken all possible steps to avail himself of a right to enter and reside in India (cf SZFBO at [24] per Emmett J)), nonetheless such error was not one that vitiated the Tribunal’s decision, because the primary basis for the Tribunal’s decision was its inability to accept the applicant’s claims gave rise to a real chance that he would face serious harm for a Convention reason and its rejection of his claims as fabricated. I accept that, as submitted for the first respondent, this clearly distinguishes this case from SZFKD.  While there was a credibility finding in SZFKD, the Tribunal’s rejection of the applicant’s credibility was not expressed in a way which independently supported its reasoning adverse to the applicant.  However in this case the adverse credibility finding was not linked (inextricably or otherwise) with the reasoning in relation to India (however interpreted).  It was an entirely separate strand of reasoning, unaffected by the finding in relation to India which was explicitly expressed as an alternative made “for the sake of completeness”.  In distinction to SZFKD the primary finding in this case was devoid of error.  Hence, if there was an error in relation to the finding about a right to enter and reside in India, I am satisfied that the Court should withhold relief as a matter of discretion on the basis of the unaffected finding (see VBAP of 2002 v MIMIA [2005] FCA 965 at [25] and [33] per North J and SZEEU v MIMIA & Anor (2006) 230 ALR 1 at 51 [233] per Allsop J and also see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [57] – [62]).

9. Such principles should not be confined to matters involving error consisting of a failure to comply with s.424A.  The principle was expressed more generally by Allsop J at [232] in SZEEU.  His Honour rejected a proposition that the discretionary reasons which could lead to writs not issuing did not include the existence of an entirely separate unimpeached basis for concluding that Australia did not have protection obligations, finding that if it could be shown that there was a basis otherwise unimpeached upon which the decision was reached which was unaffected by jurisdictional error (in that case by the failure to accord procedural fairness or to comply with the required statutory procedures), relief could be withheld. 

10. Accordingly the application should be dismissed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  22 March 2007