SZQWP v MIAC

[2012] FMCA 532

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQWP v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 532

MIGRATION – Review of decision of Refugee Review Tribunal – whether finding on the Indo-Nepal Treaty of Peace and Friendship a finding of fact – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36, 476

SZGXK v Minister for Immigration & Citizenship [2008] FCA 1891
SZHYB v Minister for Immigration & Anor [2007] FMCA 311
Minister for Immigration & Multicultural Affairs v Applicant C [2001] FCA 1332; (2001) 116 FCR 154
SZHWI v Minister for Immigration & Anor [2006] FMCA 1924
SZOSU v Minister for Immigration & Anor [2011] FMCA 132
SZGXK v Minister for Immigration & Anor [2008] FMCA 822

Applicant: SZQWP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2687 of 2011

Judgment of: Nicholls FM

Hearing date: 19 June 2012

Date of Last Submission: 19 June 2012

Delivered at: Sydney

Delivered on: 19 June 2012

REPRESENTATION

The Applicant: In Person

Appearing for the Respondents: Mr A Markus

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application made on 24 November 2011, and amended on 7 March 2012, is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2687of 2011

SZQWP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), made on 24 November 2011 and amended on 7 March 2012, which seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 21 October 2011, which affirmed the decision of a delegate of the respondent Minister to refuse the grant of a protection visa to the applicant.

Background

1. The Minister has put a bundle of relevant documents before the Court (Court Book – “CB”). The following background is derived from that material.

2. The applicant is a citizen of Nepal (CB 1). He arrived in Australia on 7 May 2008 on a student visa (CB 3). On 4 January 2011 he applied for a protection visa (CB 1 to CB 34, with annexures).

3. His claims to protection were set out both in the relevant application form and in a separate statement dated 29 December 2010 which accompanied the application (CB 7 to CB 10 and CB 25 to CB 27). Those claims can relevantly be summarised as follows:

   (1)The applicant was an active member of the Nationalist Student Organisation (“NSO”), a pro-monarchy student organisation in Nepal. He was also involved with a particular political party, the Rastriya Prajatantra Party (“RPP”).

   (2)As a result of his involvement in those organisations, and his personal views supporting human rights and democracy, he was harassed and targeted by Maoist activists at his college in Nepal. He was threatened with physical assault if he did not join the Maoists.

   (3)In August 2007, having refused to join the Maoists, the applicant was captured and detained by them for one week. He was beaten during that time.

   (4)The applicant came to Australia as a student. He did not immediately make a protection visa application as he intended to complete his studies and then apply for permanent residency at that time.

   (5)The applicant’s family, who remain in Nepal, still receive frequent requests for donations from the Maoists, and the Maoists have continued to make threats against him to his family. He fears he will be killed by the Maoists if he returns to Nepal.

The Delegate

1. The applicant was invited to attend an interview before the delegate (CB 38 to CB 39), which he attended. At that time he “reiterated his written claims” and provided some documentation in support of his claims (CB 49). On 28 February 2011 the delegate refused the grant of a protection visa to the applicant (CB 47 to CB 55).

2. The delegate considered that the applicant might be permitted to enter and remain in India. However, contrary to the Tribunal, “… in the absence of a legally enforceable right, and in accordance with current departmental guidelines …” the delegate found that the applicant did not presently have effective state protection in a third country (CB 52).

3. I note that it appears that the delegate has confused a number of relevant concepts in that presentation. Further, in spite of the reference to SZGXK v Minister for Immigration & Citizenship [2008] FCA 1891 (“SZGXK”) (at CB 52.4), the delegate appears to have had no regard to relevant country information which was otherwise said to be before the delegate. What the department guidelines (at CB 52.2) are that informed the delegate remained unexplained.

4. In any event, the delegate went on to consider the applicant’s claim to fear harm from the Maoists. It was accepted that the applicant had been involved in some of the activities that he claimed in the past. However the delegate was not satisfied the applicant would be targeted on return simply because of his involvement with the pro-Monarchist political party or any other political group (CB 54). Further, given the time that had elapsed between the applicant being threatened and what was said to be his limited profile in Nepal, the delegate was not satisfied that the applicant would still face persecution for reason of his political opinion if he were to return to Nepal (CB 53 to CB 55).

The Tribunal

1. The applicant applied to the Tribunal for a review of this decision on 29 March 2011 (CB 56 to CB 59). He was subsequently invited to a hearing before the Tribunal on 16 May 2011 (CB 68 to CB 69). The applicant attended on that occasion (CB 72 to CB 73). The only account of what occurred at the hearing is the Tribunal’s own account, contained in its decision record ([27] at CB 84 to [54] at CB 87).

2. I note that at that hearing, according to the Tribunal’s unchallenged record, the Tribunal indicated to the applicant that a number of matters were in issue in the determination of the application before it ([31] at CB 85). It is important to note that the Indo-Nepal Treaty of Peace and Friendship (“the Treaty”), between India and Nepal, was, amongst other matters, a material issue in the proceedings ([53] at CB 87). The applicant was asked by the Tribunal why he could not “relocate” to India in circumstances where such a Treaty existed. The applicant responded to the Tribunal’s questions.

3. The Tribunal decided to affirm the decision of the delegate (CB 79 to CB 102). When regard is had to the Tribunal’s findings and reasons ([172] at CB 97 to [199] at CB 101), and in light of country information which the Tribunal has extracted and presented in its decision record, the following becomes clear. The Tribunal accepted all of the applicant’s claims of past persecution ([177] at CB 98). Further, the Tribunal found that there was more than a remote chance that the applicant would suffer serious harm from the Maoists if he returned to Nepal in the reasonably foreseeable future ([179] at CB 98). It also found that there were clearly deficiencies in the level of state protection available in Nepal and that the applicant could not reasonably and safely relocate within Nepal ([188] to [190] at CB 100).

4. The Tribunal had regard to relevant country information before it. It noted that the applicant had a legal and valid Nepalese passport which was valid until the year 2017. The Tribunal also considered, and rejected, the applicant’s claim raised at the hearing, in response to the Tribunal’s having put the issue to him, that he would be persecuted in India, including by Maoist ([195] to [199] at CB 101).

5. Ultimately, having regard, in particular, to s.36(3) of the Act, and to the extent that s.36(4) and (5) may be seen to flow and be connected to it, the Tribunal found that, given the Treaty and how its effects should be properly understood, the applicant had a presently existing legally enforceable right to enter and reside in India ([193] at CB 100 to [199] at CB 101).

Application to the Court

1. The application before the Court, as amended, puts forward essentially one ground of review. Although it is not immediately recognisable as having properly pleaded any jurisdictional error on the part of the Tribunal, nonetheless a “legal complaint” is evident in what the applicant has put. That ground is:

   “‘a presently existing legally enforceable right to enter and reside in India’ That is clearly incorrect because there is no domestic Indian legislation bringing the India/Nepal Treaty of friendship into binding Indian domestic legislation.  It is at para 199 of the RRT decision.”

Before the Court

1. At the hearing this morning the applicant appeared in person and was assisted by an interpreter in the Nepali language. Mr A Markus appeared for the first respondent. In addition to the Court Book, the Court was assisted by the Minister’s written submissions.

The Ground

1. When asked to speak to his application the applicant noted that the Tribunal had found that he was legally entitled to go and live in India. However, he asserted that there was “no such treaty”.

2. Broadly, I understood this latter comment to be that the Treaty had not been enacted into domestic law, such that his complaint was that he did not, therefore, have a legally enforceable right to enter and reside in India.

3. The Minister’s representative explained the Minister’s position in brief, but in the circumstances comprehensive, form. That is, that there was evidence before the Tribunal which enabled it to make a relevant factual finding, which is the finding that it made. That factual finding (that the applicant could legally enter and reside in India) was made on a range of evidence before the Tribunal, was reasonably open to it and, in the circumstances, the Court could not interfere with that decision.

4. In short, I agree with that submission.

5. The applicant’s complaint of legal error on the part of the Tribunal takes issue with its finding that he had a legally enforceable right to enter and reside in India in circumstances where the applicant says there is no domestic legislation in India bringing the Treaty into effect or making it a part of domestic Indian law. As I have already indicated, the question at issue in the current case is whether it was open to the Tribunal to find, in the circumstances presented to it, that the applicant had such a right.

6. I note the Minister’s submissions and reference to authority, in particular SZHYB v Minister for Immigration & Anor [2007] FMCA 311 (“SZHYB”). As set out in that case, the fact that the Treaty has not been enacted into domestic law does not, of itself, reveal legal error as the Tribunal is not required to refer to a specific provision in the domestic law of India to find that such a right exists for the purposes of s.36(3) of the Act. I note in particular SZHYB at [33] and the authorities that are referred to there in support of that proposition (Minister for Immigration & Multicultural Affairs v Applicant C [2001] FCA 1332; (2001) 116 FCR 154 at [60] per Stone J and SZHWI v Minister for Immigration & Anor [2006] FMCA 1924 at [30] – [32] per McInnis FM).

7. As Mr Markus submitted, the question, in essence, for the Court is whether there was evidence on which the Tribunal could base its finding that the applicant had such a right. That is, the legally enforceable right to enter and reside in India. It is important to note, as I said in the matter of SZOSU v Minister for Immigration & Anor [2011] FMCA 132 at [67], that is a question of fact for the Tribunal.

8. I agree with the Minister that relevant authorities suggest that it would not be open to the Tribunal to make such a finding, only with reference to the Treaty, in circumstances where the Treaty had not been enacted in domestic law. However the Tribunal is entitled to reach such a conclusion in the absence of any such enactment provided it is reasonably open to do so when regard is had to other relevant evidence (SZGXK per Graham J and, at first instance, SZGXK v Minister for Immigration & Anor [2008] FMCA 822 per Smith FM). In the current case the Tribunal had regard to such “relevant evidence”, that being country information.

9. In short, if there is sufficient evidence to support the Tribunal’s finding, then the question as to whether the applicant has the right to enter and reside in India is a question of fact for the Tribunal. 

10. The Minister’s submissions refer to the country information that was relied upon by the Tribunal in SZGXK at first instance ([2008] FMCA 822). That information was concerned with showing the situation involving Nepali nationals seeking to enter and reside in India (including the need to show evidence of identity when seeking to enter India). Further, that country information stated that the Treaty obligations were implemented as a matter of course by the Indian authorities and detailed the practice of Indian authorities in meeting their Treaty obligations without the passage of domestic legislation. Even further, that Nepalese nationals were not denied entry into India on production of any identity document, unless they were of security concern.

11. Importantly, on appeal Graham J found in SZGXK that this was sufficient material for the Tribunal, in that case, to find that the applicant had a legally enforceable right to enter and reside in India. In the current case the Minister submits that the same circumstances apply and, on any plain reading of the Tribunal’s decision record and the country information to which it refers, I can only agree.

12. In the current case, the range of information relied on by the Tribunal is, in substance, similar to that in SZGXK and, it is important to note, that that information is variously set out in the Tribunal’s decision record ([169] at CB 92 to CB 93). That material deals with the practice of the Indian authorities in meeting the conditions of the Treaty without enactment in domestic law, the requirement for Nepalese citizens to produce identity documents, and that Nepalese citizens were not denied entry into India unless they were of security concern.

13. The Tribunal reasoned, and ultimately found, that the applicant was in possession of a current Nepalese passport, valid until 2017, and, in the circumstances presented and in the context of the country information to which it had regard, that the applicant had a legally enforceable right to enter and reside in India. The Tribunal also dealt with the difficulties that the applicant said he would face in India if he were to go and reside there.

14. These findings, and the conclusions which flowed from them, were all reasonably open to the Tribunal on what was before it. Ultimately, whether the applicant had a legally enforceable right to enter and reside in India is a question of fact for the Tribunal. I cannot see error in how the Tribunal approached this relevant situation (ss.36(3), (4) and (5) of the Act).

15. As I said to the applicant earlier today, for him to succeed today the Court would need to, at the very least, find jurisdictional error in what the Tribunal has done. The applicant’s sole complaint before the Court does not reveal such error.

The Applicant’s Oral Submission: An Alternative Understanding

1. I should just note, lest there be any doubt, I have obviously proceeded on the basis that the applicant’s assertion as to there being “no Treaty” in existence was a reference to the Indo-Nepal Treaty of Peace and Friendship, and that it had not been enacted into domestic law.

2. Even if the complaint were, as he subsequently stated it before the Court, that there was in fact no Treaty, the Tribunal’s finding that there was such a Treaty was also, on the material before it, a finding reasonably open to it to make. If that was the applicant’s complaint today, then that also would not reveal jurisdictional error, given that that factual finding was a finding reasonably open to the Tribunal to make on what was before it.

Conclusion

1. In all these circumstances, the application to the Court should be dismissed. I will make an order accordingly.

Costs

1. It is appropriate that an order for costs be made in the usual way. As is often said, costs follow the event. There is nothing before the Court, nor has the applicant said anything to the Court today, to raise any argument against the making of such an order.

2. As to the amount, having regard to the work that has actually been done by the Minister’s solicitors in responding to the application, I am satisfied that the amount sought is a reasonable amount, and I will make the order set in that amount.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  5 July 2012