SZNKZ v Minister for Immigration
[2009] FMCA 737
•7 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNKZ v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 737 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – operation of s.36(3) of the Migration Act 1958 – legally enforceable right of entry to another country – right need not be mirrored by a correlative duty on a state – how a right of entry and residence in another country may be demonstrated. |
| Migration Act 1958, ss.36, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZLAN v Minister for Immigration & Citizenship [2008] FCA 904 Minister for Immigration & Multicultural Affairs v Applicant C (2001) 116 FCR 154 SZGXK v Minister for Immigration & Citizenship [2008] FCA 1891 SZGXK v Minister for Immigration & Citizenship [2008] FMCA 822 |
| Applicant: | SZNKZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 839 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 21 July 2009 |
| Date of Last Submission: | 21 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 7 August 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr J.R Young |
| Solicitors for the Applicant: | Simon Diab |
| Counsel for the First Respondent: | Mr H. Bevan |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 839 of 2009
| SZNKZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Nepal where, he claims, his family was targeted by Maoists. He claims that in 2001 there was a clash in his village between Maoists and the Nepalese army. He alleges that the Maoists subsequently accused him of not having warned them of the army’s approach and that he was thereafter forced to provide “donations” as compensation.
The applicant claims to fear persecution in Nepal from the Maoists and also from other political parties.
After his arrival in Australia on 20 August 2008, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 12 December 2008. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 10 of the Tribunal’s decision (Court Book (“CB”) pages 222 – 228). Relevant factual allegations are summarised below:
a)in 2001 Maoists from the Nepal Communist Party held a “session” in the applicant’s village at or near the local high school. However, a raid was conducted by the Nepalese army in which six Maoists and four students were killed;
b)the army had entered the village by an unusual route which took them past the applicant’s residence and/or shop and the Maoists accused the applicant of not having warned them of the army’s approach. The applicant’s father, who was the president of the school’s administration, was also blamed for the incident. Thereafter, the applicant’s family became a target of the Maoists;
c)the Maoists demanded “donations” from the applicant and accused him of working for organisations which did not support the Maoist cause. He was threatened and told not to join any organisations, parties or activities. As a result, his business did not do well and he suffered a lot of debt. He was also told that he should work for the Maoists in their surveillance or face abduction and death;
d)other political parties and organisations such as the Terai People’s Revolution Freedom Group and the Defence Army also took “donations” from him;
e)he was a member of the Rastriya Prajantantra Party (“RPP”) between 1993 and 2001, however, when the Maoists and the Terai People’s Revolution Freedom Group found out they accused him of being a puppet of the monarchy and pressured him to abandon the party. After he left the RPP he joined the Nepali Congress which was then in power as he hoped he would be afforded more protection by the authorities;
f)the Maoists, and also possibly the Terai People’s Revolution Freedom Group, pressured him repeatedly to join their party and asked him to take up arms for their cause. The applicant constantly refused. In 2006 he was abducted by the Maoists and kept in a jungle camp for seven days;
g)the applicant returned to his home village and tried to collect the outstanding debts owed to him by his customers but the Maoists told his customers not to pay. He was told that he would be physically punished if he tried to collect the money;
h)as a result, he could not work, support his family, educate his children or repay his debts. Concerned that his family would suffer even more if something happened to him, the applicant decided to leave Nepal to protect his life and the future of his family;
i)in 2008 the applicant and his wife left Nepal and came to Australia. However, the Terai People’s Revolution Freedom Group demanded that they provide a donation and threatened to abduct their children if they did not do so. His wife was forced to return to Nepal to pay a portion of the donation and the applicant has promised to pay the remainder at a later stage;
j)he is in danger from the Maoists and the Terai People’s Revolution Freedom Group. If he returns to Nepal he will have to work “as per their instructions” and if he refuses his family could be abducted. He has been warned that if he informs the government authorities, his family will be killed and his shop burned down;
k)he also fears widespread criminality in Nepal; and
l)he could not travel to India with his family because “the time was not right”; because he feared the Maoists would target him in India; because he feared the Maoists who lived in India; and because he was not entitled to a ration card which he would need in order to reside in India permanently.
The Tribunal also had before it a letter from the applicant’s migration agent dated 23 September 2008 submitting, amongst other things, that relocation to India was not an option for the applicant because the India-Nepal Treaty of Peace and Friendship 1950 (“Treaty”) did not give the applicant a legally enforceable right to enter and reside in India.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). Relevantly, the Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal was satisfied that the applicant had a “legal right” to enter and reside in India pursuant to the Treaty, noting that:
i)country information stated that pursuant to the Treaty Nepalese nationals could enter India by land or air on presentation of appropriate documentary identification but subject to the exclusion of certain individuals such as Nepalese Maoists;
ii)the Treaty states that the two governments 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 and other privileges of a similar nature;
iii)according to independent evidence, even though the Treaty has not been adopted into India’s domestic law, the authorities in India nevertheless view the Treaty as valid and insist upon Nepal’s full compliance with its provisions;
iv)according to advice from the Department of Foreign Affairs & Trade (“DFAT”), Nepalese citizens do not require a visa to enter India and may enter and reside, principally on presentation of their passport; and
v)the applicant and his family do not fall into any of the categories of persons denied entry by the Indian authorities;
b)the Tribunal found that the applicant and his family could live in India indefinitely, noting that:
i)there was no evidence that their movements were impeded by anyone in Nepal such that they could not leave if they wished to;
ii)the large Nepalese population in India and the high level of sympathy Indians have towards Nepalese nationals struggling to achieve democracy, coupled with the terms and operation of the Treaty, satisfied the Tribunal that the applicant and his family would not be refouled from India, irrespective of how long they remained there, to a country where their life or liberty would be threatened for a Convention reason;
iii)none of the country information seen by the Tribunal satisfied it that the applicant would not be able to take reasonable steps to access a ration card in India;
iv)the Tribunal did not accept that any Maoist, person or group would have the desire and/or capacity to locate and/or harm the applicant and his family were they to enter and reside in India; and
v)the Tribunal did not accept that the applicant would suffer discrimination amounting to persecution in India for reasons of his Nepalese nationality in such a way or to such an extent that he would not practically be able to exercise his rights under the Treaty to live and work freely in India; and
c)the Tribunal was satisfied that the applicant had not taken all possible steps to avail himself of the right to enter and reside in India as required by s.36(3) of the Act. Accordingly, the Tribunal found that Australia did not have protection obligations to him.
Proceedings in this Court
Allegations
The grounds of the application commencing these proceedings were pleaded as follows:
(1)The Second Respondent made jurisdictional error by finding, when as a matter of law such finding was not open, that the applicant had a presently existing legal right under the 1950 Treaty of Peace and Friendship between Nepal and India, to enter and reside in India on presentation of his passport.
(2)The Second Respondent made jurisdictional error by failing to alert the applicant that the question of whether he had taken all possible steps to avail himself of the right to enter and reside in India was a matter arising on the review.
(3)Further or in the alternative to 2 above, the Second Respondent made jurisdictional error by failing to comply with section 425(1) of the Migration Act in relation to the matter found by the Second Respondent at [91] of the Statement of Decision.
The applicant relied solely on the first ground alleged and did not press the second and third grounds of the application.
Statutory background
Section 36(3)-(5) of the Act provides:
(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.
Australia’s protection obligations will be excluded by s.36(3) if an applicant fails to demonstrate that he or she has taken all reasonable steps to exercise such entry and residency rights as he or she may hold in another country: SZLAN v Minister for Immigration & Citizenship [2008] FCA 904 at [58].
However, the right of entry and residence referred to in s.36(3) must be legally enforceable: Minister for Immigration & Multicultural Affairs v Applicant C (2001) 116 FCR 154; SZLAN’s case. Even so, such a right need not be mirrored by a correlative duty obliging a state to act in a particular way. The legally enforceable right may be a right which can be revoked without notice and even without reasons: Applicant C’s case at 170 [57] and [58]. Moreover, the right may be capable of being exercised relatively informally. As Stone J said in Applicant C’s case, Gray and Lee JJ agreeing:
It should also be recognised that a right of entry such as I have postulated may arise other than by grant of a visa. A country’s entry requirements may be met by proof of identity and citizenship of a nominated country being provided at the border, for example by production of a valid passport, without the necessity for a visa. This would explain the use in s.36(3) of the phrase, “however that right arose or is expressed”. (at 171 [60])
Hence, an applicant’s right of entry to a country other than his or her country of nationality might be achieved simply by presentation of a valid passport, without the necessity for a visa. Although such a right could be vulnerable to sudden and unexplained revocation, until such a revocation, the right would subsist.
Consideration
The issue for determination by the Court is whether the Tribunal erred in finding that the applicant has a right of entry and residence in India. At the outset it should be noted that the Treaty relevantly provides that India and Nepal shall grant to each other’s nationals who are in their territory several reciprocal rights including the right of residence.
It was the applicant’s case that the Tribunal erred by relying on DFAT reports which, he submitted, contained an erroneous interpretation of the Treaty, an error which infected the Tribunal’s understanding of the Treaty’s operation and thus infected its decision too. He submitted that the DFAT reports contained legal views which were wrong and that everything flowed from this incorrect advice.
The Tribunal’s findings might be understood to manifest the same error as was identified in SZGXK v Minister for Immigration & Citizenship [2008] FCA 1891, namely, construing the Treaty as providing a right of entry when it does no such thing, at least expressly. However, I do not read the Tribunal’s decision as an attempt to express how the Treaty should properly be construed. I find that the Tribunal did not attempt a construction or interpretation of the Treaty’s provisions. Rather, it considered whether, in practice, the Treaty operates such that Nepalese nationals have a right to enter and reside in India.
The Tribunal reached its finding that Nepalese nationals can enter and reside in India based on the country information which it set out in its decision record describing how the Treaty actually operates and how, relevantly, it is implemented by the Government of India. Significantly, the existence of a right of entry and residence need not depend solely on the terms of the Treaty. As Smith FM said at first instance in SZGXK v Minister for Immigration & Citizenship [2008] FMCA 822 at [38]:
The error by the Tribunal as to the legal effect of the treaty under Indian law might, however, not have jurisdictional implications, if the Tribunal’s ultimate conclusion as to a right coming within s.36(3) could be supported by the other evidence cited by the Tribunal from the DFAT reports. As I have identified above, some of the information given in the DFAT reports might possibly support a finding that, independently of the legal effects of the treaty, India generally gave Nepalese persons in the position of this applicant, who are outside its territory, a right to enter and reside in its territory. Even if the evidence was highly equivocal as to the existence of an underlying “right to enter and reside” which explained the settlement of large numbers of Nepalese in India, a court on judicial review should be slow to find that it was not open to the Tribunal to infer the existence of such a right enforceable under Indian law. Particularly, since current authority, which is binding upon me, placed on the visa applicant the evidentiary burden of proof to the contrary (see Graham J in SZLAN (supra) at [58]).
On appeal, Graham J approved these comments in SZGXK v Minister for Immigration & Citizenship [2008] FCA 1891 at [31].
Country information cited by the Tribunal in its decision record expresses the ease of entry into India by Nepalese nationals by reference to the Treaty. Indeed, at para.57 of its decision record the Tribunal notes the following:
Advice from the Protocol Enquiry Officer, FRRO and the Royal Nepalese Embassy indicated that previous advice from DFAT, DFAT Report 409, dated 28 September 2005, in which the Post advised that they are unaware of hindrances to Nepali citizens availing themselves of access to India under the 1950 Treaty remained correct.(emphasis in original)
Although the country information cited by the Tribunal does not state that it is by virtue of any particular provision of the Treaty that Nepalese nationals can enter India with considerable ease, the Tribunal’s conclusion that Nepalese nationals’ entry into India was by virtue of the Treaty was clearly an inference available to be drawn from the evidence before it concerning how the Treaty operates in practice. It was unnecessary for the Tribunal to express a view on the strictly correct interpretation of the Treaty’s terms, given that the evidence satisfied it how those terms were, relevantly, implemented by the Indian authorities. I find that the Tribunal’s decision was not based on any view it might have had concerning the proper construction of the Treaty. Consequently, any erroneous construction of the Treaty which may have been contained in the DFAT reports does not affect the correctness of the Tribunal’s decision.
Even so, the Tribunal’s finding that Nepalese nationals can enter and reside in India would be of no significance for s.36(3) if that right afforded by the Treaty’s practical operation could not be legally enforced. As to the enforceability of the Treaty, the Tribunal said at para.78:
However, the Tribunal further accepts the abovementioned advice of Dr V D Sharma that the conditions of this treaty are met by India without the passage of the domestic legislation. Sharma characterised the operation of the 1950 Treaty as having been enacted for a long time (Department of Foreign Affairs and Trade 2006, 18 January). (emphasis in original)
It was therefore open to the Tribunal to infer that Indian law recognises the rights which, in practice, the Tribunal provides to Nepalese nationals, including the right to enter and reside in India. Indeed, the DFAT reports of “11 April” (CB 234-235) and 23 October 2006 (CB 232-233) are the reports quoted by Smith FM at [31]-[35] of his decision at first instance in SZGXK. In relation to that evidence, on appeal Graham J said:
In my opinion, it was entirely appropriate for the Tribunal to have regard to the right conferred by the treaty on the appellant to reside in India and, further, to have regard to the Departmental evidence indicating that India generally gave Nepalese persons who were outside its territory a right to enter and reside there. (at [32])
In the context of a situation similar to the current proceedings, in SZLAN’s case, in a finding which appears to echo the information contained in the DFAT reports referred to in the Tribunal decision currently under review, Graham J said:
The Tribunal also found that India accepted the Treaty of Peace and Friendship between India and Nepal and that the Treaty had been incorporated into the domestic law of India and, as such, could be accessed by the first appellant. In the circumstances, if it were necessary to find that the first appellant had a right of entry as explained by Stone J in Applicant C then no more was required than the matters which the Tribunal found (see in particular at [60] in Applicant C). (at [67])
Conclusion
In this case, even if the DFAT reports contained erroneous advice concerning the legal effect of the Treaty, that is of no significance because the Tribunal’s decision was not concerned with the proper meaning of the Treaty’s provisions. It was concerned with the actual operation of the Treaty and the rights which, regardless of its precise wording, the Treaty provides in practice. Further, those rights, although possibly liable to revocation or suspension without notice or explanation, are legally enforceable until any such revocation or suspension and thus satisfy the s.36(3) test.
As a result, jurisdictional error on the part of the Tribunal has not been demonstrated and the application will be dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 7 August 2009
5
1