SZJGJ v Minister for Immigration - [2008] FMCA 65

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJGJ v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 65

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 the Refugee Review Tribunal.

PRACTICE & PROCEDURE – Motion for reinstatement of review application – applicant present in Court precinct at time of scheduled final hearing – applicant was unaware that he was being referred to by a pseudonym – matter reinstated.

The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZJGJ”.

Federal Magistrates Court Rules2001 (Cth), rr.13.03A(c), 16.05(2)(a)
Migration Act 1958 (Cth), ss.36(3), 63, 91X, 424A

NAGV v Minister for Immigration & Citizenship (2005) 79 ALJR 609
Minister for Immigration & Multicultural Affairs v Applicant C (2001) 116 FCR 154
Minister for Immigration v Thiyagarajah (1998) 80 FCR 543
SZFKD & Anor v Minister for Immigration [2006] FMCA 49
SZGPY v Minister for Immigration [2006] FCA 35
WAGH v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 269

Applicant:

SZJGJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 2359 of 2006

Judgment of:

Lloyd-Jones FM

Hearing date:

24 August 2007

Delivered at:

Sydney

Delivered on:

1 February 2008

REPRESENTATION

Advocate for the Applicant:

The applicant appeared in person with the assistance of a Nepali interpreter

Solicitors for the Respondents:

Ms S Kantaria of Clayton Utz

ORDERS

The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
The orders made by this Court on 17 July 2007 are set aside.
A writ of certiorari shall issue directly to the second respondent quashing the decision of the second respondent handed down on 1 August 2006 in proceedings 060344584.
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 23 March 2006.
There be no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2359 of 2006

SZJGJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

The applicant states that he was born in 1971 in Dhanding, Nepal. After completing a Bachelor of Education at the Tribhuvan University in Kathmandu, he started teaching at the Lakcheinkunda in a remote part of the Dhanding district. The applicant returned to Kathmandu in 1992 to commence part time study in pharmacy. In 1997 he started his own pharmacy business in Kathmandu on the border of the Nuwakot district.
In his pharmacy business, the applicant had a clinic for minor treatments which was staffed by a doctor. In May 1999 a group of 10 people turned up at the clinic with five wounded members who were Maoist insurgents. As they were badly wounded, the applicant suggested they attend a hospital. The group refused and demanded he dress the wounds. Further injured rebels attended his pharmacy and in May 2000 the applicant abandoned the business and commenced work in for an uncle who was a book and stationery supplier. However, the Maoist rebels continued to pursue him for treating injured fighters. The applicant fled Nepal in November 2005 and sought protection in Australia because of his fear of Maoist rebels and that he had assisted the police in the capture of two of their members.
A delegate of the first respondent refused to grant a Protection (Class XA) visa. The applicant sought review of the delegate’s decision in the Refugee Review Tribunal (“the Tribunal”), which upheld the delegate’s decision. The applicant seeks judicial review of the Tribunal’s decision.
A Court Book (“CB”) prepared and filed by the first respondent's solicitors is marked Exhibit “A”. This document was read into evidence.
The application contains the following grounds of review:
a)Ground one – asked wrong questions and identified wrong issue, and erred jurisdictionally;
b)Ground two – illogical and irrational finding;
c)Ground three - took irrelevant considerations into account;
d)Ground four – breach of s.424A of the Migration Act 1958 (Cth) (“the Act”).

Consideration

At the first Court date, the applicant indicated that he wished to participate in the scheme to give unrepresented applicants in refugee matters independent legal advice. The Court file indicates that the applicant was allocated a panel advisor. The applicant was granted leave to file an amended application giving complete particulars of each ground of review relied upon by 9 November 2006. Nothing has been filed.
At the directions hearing of 23 November 2006, the applicant was ordered to filed and serve a short written outline of submissions and list of authorities 14 days before the final hearing. Again, nothing has been filed.
When the matter was listed for final hearing on 17 July 2007 at 2.15pm there was no appearance by the applicant. The matter was called in the Court precinct at 2.25pm and again there was no response. The application was dismissed pursuant to r.13.03A(c) of the Federal Magistrates Court Rules2001 (Cth) (“the Rules”) due to the failure of the applicant to appear. The first respondent was ordered to provide the applicant with written notice of those orders by 24 July 2007 and inform him of his rights under r.16.05(2)(a) of the Rules. On 19 July 2007, the applicant filed an Application in a Case supported by an affidavit stating that he was present in the Court precinct on the day of the hearing but was unaware that he was being called by his pseudonym. The matter was listed on 24 August 2007 to consider that application.
In the circumstances, I reinstated the matter and indicated I would proceed immediately with the hearing because all of the necessary preparatory steps had been completed for the previously scheduled hearing.
Significantly the Tribunal’s “Findings and Reasons” contain the following statement:
For the sake of completeness, the Tribunal finds further that if the applicant did have fears about living in Nepal, it would be reasonable in the particular circumstances of his case, to exercise his right as a Nepalese citizen to live and work in India. In making this finding, the Tribunal notes that the applicant has employable skills in a variety of professional areas (teaching, pharmacy, sales) such that he might expect to be able to work in India. The Tribunal notes there are linguistic similarities between Nelpalese and Indian languages such that he would easily be able to learn an Indian language and be able to live in India, as have many hundreds of thousands of Nepalese. The Tribunal has considered the adviser’s written submission but is not persuaded by his arguments. While unemployment in India might indeed be higher than in Australia, although the adviser has provided no evidence for this contention, the reality is that the applicant may well be more employable in India than in Australia. However, this is not the issue before the Tribunal, and neither is the fact that he has never been to India. Further, there is no reason why the Indian authorities might “wish” to send the applicant back to Nepal. The issue, rather, is whether it is reasonable given the circumstances of the applicant to make use of his right under the Friendship Treaty to live and work in India. Having considered the applicant’s work skills, the Tribunal finds that it is indeed reasonable for the applicant to move to India should he feel a subjective fear in Nepal. However, in the light of the Tribunal’s above findings, the Tribunal itself finds there is no real chance the applicant would face serious harm were he to return to Nepal and so the India option is merely one that is open to the applicant should he wish to avail himself of it. (CB 135-136)
The Tribunal appears to have applied the “effective protection” principle as per s.63(3) of the Act in the terms that the applicant could “exercise his right as a Nepalese citizen to live and work in India” in a seamless continuum. The “effective protection” principle is found in Minister for Immigration v Thiyagarajah (1998) 80 FCR 543. However, Thiyagarajah is no longer good law. The High Court held in NAGV v Minister for Immigration & Citizenship (2005) 79 ALJR 609 that Australia has protection obligations to a protection visa applicant whether or not the applicant had access to a “safe third country”.
In Minister for Immigration & Multicultural Affairs v Applicant C (2001) 116 FCR 154 at [65], Stone J (with whom Gray and Lee JJ agreed) summarised the law as it was at the time in 2001:
[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 proposition contained in (a) above was based on the principle stated in Thiyagarajah which was overruled by the High Court in NAGV.
A Nepalese citizen can be refused entry into India, which implies that there is no legally enforceable right to do so. The Tribunal did not state whether this alleged right stems from the erroneous “effective protection” principle or s.36(3) of the Act.
This issue was addressed by Smith FM in SZFKD & Anor v Minister for Immigration [2006] FMCA 49 which is a very similar matter to the one before this Court. His Honour said at [37]:
[37] 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.
Then at [40] his Honour stated:
[40] 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 [43] his Honour stated:
[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]).
In SZFKD at [44] his Honour found:
[44] 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.
In SZGPY v Minister for Immigration [2006] FCA 35 at [9] 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. His Honour held that the construction adopted was open to the Tribunal on the facts.
Reliance was placed on the observations of Lee J in WAGH v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 269 at [278], which might be viewed as indicating that it is necessary for prior acceptance or acknowledgement by a third country to enliven s.63(3) of the Act. SZGBY is distinguished from this case on the ground that the applicant in that case indicated that he could go to India and that his entry was not an issue.
The issue in this case is whether the applicant, a Nepalese citizen, has a legally enforceable right to enter and reside in India. The Tribunal reached a conclusion that the applicant had 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 found at CB 135.7:
…it would be reasonable in the particular circumstances of his case, to exercise his right as a Nepalese citizen to live and work in India.
The Tribunal did not examine whether the applicant had ever attempted to enter India but rather based its finding on the applicant’s employable skills in a variety of professional areas (teaching pharmacy and sales), the similarities between Nepali and Indian languages and the absence of any identified reason why Indian authorities might not allow the applicant to enter. The Tribunal treated the applicant as being a person that has “a right to enter and reside in India as an existing and legally enforceable right” without establishing whether the applicant would be allowed to enter India unimpeded.

Conclusion

The applicant in these proceedings is a self-represented litigant and was assisted at the hearing by a Nepali interpreter. The Court Book indicates that when the applicant filed his application for judicial review in this Court he was unrepresented. However, in June 2006 a Mr Selliah, an immigration consultant and solicitor, wrote to the Tribunal stating that he had been authorised to act on the applicant’s behalf. In July 2006, Mr Selliah wrote a lengthy letter to the Tribunal setting out details of the applicant’s background and claims (CB 96-116). Mr Selliah does not appear to be assisting the applicant in his application to this Court. The grounds of review in the original application cover no more general aspects of judicial review and bear little relevance to these proceedings. There is no particularisation or any form of supporting evidence to elaborate on these simplistic notions.
The Tribunal, after dealing with the applicant’s claims, made a broad statement that for the sake of completeness there is a de-facto ability by Nepalese nationals to enter India and obtain refuge. The legal framework under which such entry can be achieved was not identified or discussed. The decision relied purely on its observation that the applicant had a range of employment opportunities available to him in India, and that he would be able to blend in with the population with little trouble. There is no evidence cited by the Tribunal to establish that the applicant had a legally enforceable right to enter India as enjoyed by all Nepalese nationals. The basis that the Tribunal identified would not be open to a finding that the applicant had “a right to enter and reside” in India in the sense of an “existing legally enforceable right”. The Tribunal has failed to investigate and consider the making of such a finding. This purported application of s.36(3) of the Act was therefore vitiated by jurisdictional error.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 1 February 2008