SZRCQ v Minister for Immigration

[2012] FMCA 788

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRCQ v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 788

MIGRATION – Review of decision of RRT – whether Tribunal considered applicant’s right to legally reside in India – whether Tribunal failed to consider a relevant matter – where applicant provided no evidence of steps taken to enter and reside in India – whether applicant took all reasonable steps to enter and reside in India – whether Tribunal misled applicant by not raising the issue of the failure to avail himself of the opportunity to seek protection from India – whether Tribunal denied applicant opportunity to give evidence and present case.

Migration Act 1958 (Cth), ss.36, 422B, 425

SZLAN v Minister for Immigration and Citizenship (2008) 102 ALD 131
SZGXKv Minister for Immigration and Citizenship [2008] FCA 1891
SZMWQ v Minister for Immigration and Citizenship (2010) 117 ALD 1
SZHWI v Minister for Immigration and Multicultural Affairs [2007] FCA 900
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Refugee Review Tribunal, Re; Ex parte Aala (2004) 204 CLR 82
Muin v Refugee Review Tribunal (2002) 76 ALJR 966
VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 121 FCR 100
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553

Applicant: SZRCQ

Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 217 of 2012

Judgment of: Raphael FM

Hearing date: 27 August 2012

Date of Last Submission: 27 August 2012

Delivered at: Sydney

Delivered on: 27 August 2012

REPRESENTATION

Counsel for the Applicant: Mr J.R. Young

Solicitors for the Applicant: Shamser Thapa & Associates

Counsel for the Respondents: Mr B. O’Donnell

Solicitors for the Respondents: Minter Ellison

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $6,471.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 217 of 2012

SZRCQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Corrected Judgment)

1. The applicant is a citizen of Nepal who arrived in Australia on 20 March 2007 as the holder of a student visa. On 14 March 2011, after the expiry or other determination of his student visa, he made an application for a protection (class XA) visa. On 9 June 2011 a delegate of the Minister refused to grant a protection visa and on 27 June 2011 he applied for review of that decision from the Refugee Review Tribunal. The applicant attended a hearing before the Tribunal which on 9 January 2012 determined that he was not a person to whom Australia owed protection obligations on the ground that he fell within the exception to the general provisions of s.36 by virtue of subs.36(3) of the Migration Act 1958 (Cth):

   “(3)  Australia is taken not to have protection obligations in respect of 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.”

2. On 1 February 2012, the applicant lodged an application with this Court for review of the Tribunal’s decision.  He had five grounds of application, of which only three are now being pressed.  These are:

   “1. The Second Respondent made jurisdictional error by finding that the applicant had a presently existing legally enforceable right to enter and reside in India.

   2. The second respondent made jurisdictional error by finding that the applicant had not availed himself of a legally enforceable right to enter and reside in India.

   3. The second respondent misled the applicant or alternatively acted in contravention of section 425 of the Migration Act 1958 by informing the applicant at [31] that if he had a right to enter and reside in India, then Australia did not owe him protection obligations.”

3. In the Tribunal’s findings and reasons, at [39] CB111 it notes that it is not necessary to consider the applicant’s claim for protection in any great detail because of the provisions of s.36(3). At [40] CB112, the Tribunal makes reference to the international bilateral agreement between India and Nepal known as the Indo-Nepal Treaty of Peace and Friendship of 1950 and makes reference to Article 7 of that treaty which grants on a reciprocal basis to the nationals of each country the same privileges in the matter of residence, ownership of property, participation of trade and commerce, movement and other privileges of a similar nature.

4. The Tribunal then finds at [41]-[42] CB112:

   “The same report [reference to RRT research response NPL31374] goes on to note that in the case of Nepalese citizens travelling by air, it is necessary to produce as an identity document one of a range of documents including a valid passport.  As evidenced by the extract copy of the applicant’s passport submitted with the protection visa application, the applicant holds a Nepalese passport which is valid until 6 May 2016.  The applicant accepted at hearing that he can go to India.  The country information, in particular, the 2006 DFAT advice (which the Tribunal assesses as still current) and RRT country advice NPL37205 reproduced above, shows that the provisions of the Treaty are respected as a matter of fact, and that citizens of India and Nepal can each enter the other’s countries.

   The Tribunal therefore finds that the applicant has a presently existing, legally enforceable right to enter and reside in India, should he be fearful of persecution in Nepal.”

5. It is argued on behalf of the applicant that [40] is only a quotation from Article 7 of the Treaty and that [41] relates to, and is only relevant to, the right to enter, not the right to reside.  The country information, which commences at CB106, it is argued, refers to questions asked only about the right to enter India and that there is no reference in that independent country information concerning the right to reside.  It is argued that the Tribunal therefore only addressed the right to enter and because of its failure to address the right to reside, fell into jurisdictional error by not taking into account a relevant matter.

6. There have been a number of authoritative decisions relating to the Indo-Nepal Treaty of Peace and Friendship, of which SZLAN v Minister for Immigration and Citizenship (2008) 102 ALD 131[1];  SZGXKv Minister for Immigration and Citizenship [2008] FCA 1891; SZMWQ v Minister for Immigration and Citizenship (2010) 117 ALD 1; SZHWI v Minister for Immigration and Multicultural Affairs [2007] FCA 900[2] are but a few.  In SZLAN, Graham J, in a decision which is binding on me, considered whether or not there were two separate rights;  one to enter and one to reside.  His Honour said, [68]:

   “The issue is simply whether there was a right to "enter and reside" in India. Apart from other considerations, if two rights were in contemplation, one would have expected the legislature to have expressed itself, later in the subsection, by referring to "however those rights arose or are expressed" rather than, as it did, by using the singular, namely "however that right arose or is expressed".”

   [1] “SZLAN”.

   [2] “SZHWI”.

7. Whilst it is true that the questions at CB106-110 all seem to be predicated on the basis of a right to enter, the information provided deals with the situation once a Nepalese national has entered the country and to my mind, appears to accept that the right of entry is a right to “enter and reside”.  I think that the determinative factor, however, is the independent country information found at [36] CB111 when the questions are asked:

   “Can Nepalese citizens safely relocate to India?  What sort of problems might be faced by Nepalese to relocate to India?  Do the Indian authorities respect the Friendship Treaty between India and Nepal?”

8. The responses to those questions deal with the relocation, indicating that whilst some Nepalese nationals may have some difficulties living in India, there are estimated to be between 3 and 10 million of such nationals all together.  The advice goes on to indicate that whilst these people do have some difficulty in being discriminated against by local residents, there was no suggestion that they cannot continue to reside.  This report, NPL37205, is specifically referred to by the Tribunal at [41] and so, to my mind, the question of entering and residing has been considered by the Tribunal and not just a question of entry.  We must always remember, as the Minister has pointed out, that tribunals are not courts of law and that their pronouncements must be given a beneficial interpretation, even if sometimes the language is not as happy as it might be: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 586.

9. The second and third grounds of the application are really connected.  The Tribunal, at [43], states:

   The applicant states in his application form that he has not travelled to any other country outside Nepal before coming to Australia.  Apart from India, there is no evidence to suggest the applicant has the right to enter and reside in any other country.  The Tribunal finds that he has not taken any steps to avail himself of what the Tribunal has found to be his presently existing and legally enforceable right to enter and reside in India.

   That is the finding of the Tribunal, essentially based upon the fact that the applicant offered no evidence that he had tried to enter India and was unable to do so.  The applicant relies on what fell from Allsop J in SZHWI at [23]:

   “Here, the difficulty in being satisfied that the tribunal adequately addressed s 36(3) is that it failed to address one of the elements of s 36(3): that the appellant had not taken all possible steps to avail himself of a right to enter India. The answer to this in the submission of the first respondent was that it was not an issue. The tribunal decision in the second last paragraph cited above reflects a discussion about living in India. It was submitted that it could be inferred that if the appellant had taken all possible steps he would have told the tribunal that he had done so. While there is some force in this argument, I am not prepared to conclude that if the tribunal had directed enquiry to this issue the answer would be that he had not taken all possible steps to go to India. What was possible in the circumstances of the appellant leaving Nepal is a matter of which I am ignorant. This conclusion is not to contradict Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 180 ALR 1 ; 62 ALD 225 ; [2001] HCA 30 in relation to the obligation to give reasons. The question is whether I can be confident that the failure by the tribunal to address an element of s 36(3) can be excused because it was effectively conceded or not in issue. I am not able to draw that conclusion.”

10. The applicant, in addition, relies on certain extracts from the transcript which, incidentally, I would say confirms my view that entry and reside was in the mind of the Tribunal in view of some of the questions and statements put to the applicant, such as at T29, T30, T31, T32.  The applicant uses these quotations from the transcript to indicate that whilst the question of entry and residing is mentioned, the matter of not availing himself of the opportunity is not.  The applicant suggests that this is effectively misleading the applicant in a manner similar to that found by the High Court in Refugee Review Tribunal, Re; Ex parte Aala (2004) 204 CLR 82[3] or Muin v Refugee Review Tribunal (2002) 76 ALJR 966[4]. Those cases were decided before s.422B was inserted into the Act but since then the matter has been considered in VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 121 FCR 100, which was cited with approval in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553.

    [3] “Aala”.

    [4] “Muin”.

11. The respondent argues that the questioning of the applicant at the Tribunal would not have misled a reasonable applicant into failing to provide information about any attempt that he had made to enter India, and also submits that the applicant has not provided the court with any indication of what the disadvantage to him of not having the full extent of the section explained to him was.  In other words, he has not put forward on affidavit, as was done in Aala and Muin, what steps he would have taken had he known that this was a matter in issue. These are significant arguments with which I have considerable sympathy, but it may not be necessary for me to opine further on them because I note that in the delegate’s decision CB58, the whole of s.36(3) is set out, including, of course, the matter of an applicant not taking all possible steps to avail himself or herself of a right to enter and reside. The delegate came to the conclusion that the applicant had the right to enter and reside and therefore, he had effective protection from a third country under s.36(3). I am of the view that the applicant had sufficient notice of the issue prior to coming to the Tribunal to know that this was a question that he would have to respond to, and the fact that he was not asked it directly by the Tribunal does not, in my opinion, lead to a conclusion that the Tribunal breached s.425 of the Act by not giving him an opportunity to give evidence and present arguments.

12. In these circumstances, I am of the view that the applicant has been unable to show that the Tribunal fell into jurisdictional error or failed to provide him with procedural fairness, as required under s.422B of the Act, and the application is therefore dismissed. The applicant must pay the respondent’s costs, which I assess in the sum of $6,471.00.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date:  3 September 2012

CORRECTIONS

1. In paragraph 9 the word ‘Nepal’ has been replaced with the word ‘India’.

2. In paragraph 11 the word ‘Nepal’ has been replaced with the word ‘India’.