SZRDQ v Minister for Immigration
[2012] FMCA 659
•31 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRDQ v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 659 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the applicant satisfies section 36(3) of the Migration Act 1958 (Cth) – whether the applicant has a right to reside in India – whether the applicant has a well founded fear of persecution in India for a Convention related reason – whether the applicant would be at a real risk of significant harm in India – whether the applicant would be at risk of being returned to Nepal from India – no jurisdictional error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 474, Pt.8 |
| SZMWQ v Minister for Immigration and Citizenship [2010] 187 FCR 109 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29 Abebe v Commonwealth of Australia (1999) 197 CLR 510 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 |
| Applicant: | SZRDQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 317 of 2012 |
| Judgment of: | Emmett FM |
| Hearing date: | 31 July 2012 |
| Date of Last Submission: | 31 July 2012 |
| Delivered at: | Sydney |
| Delivered on: | 31 July 2012 |
REPRESENTATION
The applicant appeared in person with the assistance of an interpreter in the Nepali language.
| Counsel for the Respondents: | Ms R Graycar |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The proceeding before this Court, commenced by way of application filed on 13 February 2012, is dismissed.
The applicant pay the costs of the first respondent fixed in the amount of $6,240.
NOTE: The application for costs is in accordance with the relevant schedule in the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 317 of 2012
| SZRDQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 16 January 2012 and handed down on 17 January 2012 .
The applicant claims to be a citizen of Nepal and of Dalit ethnicity and Hindu religion.
The issues in this case are whether the applicant has a right to reside in India, whether the applicant has a well founded fear of persecution in India for a Convention related reason, whether the applicant would be at a real risk of significant harm in India and whether the applicant would be at risk of being returned to Nepal from India. These issues are considered below in the context of considering whether the Tribunal’s decision is affected by jurisdictional error.
Prior to considering the proceeding before this Court, these reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s protection visa application claims, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.
Background
The applicant arrived in Australia on 23 May 2010 having departed illegally from Nepal using a false passport.
On 1 March 2011, the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act. A copy of the applicant’s passport was included his application.
On 19 May 2011, the Delegate refused the applicant’s application for a protection visa.
On 3 June 2011, the applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 16 January 2012, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 13 February 2012, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then s.65(1)(b) mandates that the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Section 36(3) of the Act provides that Australia is not taken 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, whether temporarily or permanently, and however that right arose or is expressed, in a country other than Australia.
Section 36(4) of the Act states that s.36(3) of the Act does not apply to a country in respect of which the non-citizen has a well-founded fear of persecution for Convention reason, or that as a necessary and foreseeable consequence of the non-citizen availing himself or herself of the right mentioned in s.36(3) of the Act, there would be a real risk that the non-citizen would suffer significant harm in that country.
Section 36(5) of the Act provides that s.36(3) does not apply in relation to a country if the non-citizen has a well-founded fear that the country will return the non-citizen to another country and the non-citizen will be persecuted in that country for a Convention reason.
Section 36(2A) of the Act defines significant harm for the purposes of s.36 of the Act.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
Pursuant to s.91R(1) of the Act, a Convention related reason must be the essential and significant reason for the persecution, must involve serious harm to the person and involve systematic and discriminatory conduct. Section 91R(2) of the Act expands on the notion of persecution and serious harm when considering Art.1A(2) of the Convention.
The applicant’s application for a protection visa
The applicant provided a statement in support of his protection visa application, dated 19 April 2011, in which he made the following claims:
a)In April 2009, he joined the Communist Party of Nepal (Unified Marxist Leninst) (“CPN (UML)”).
b)The applicant’s father was a senior local representative of the CPN (UML).
c)The applicant’s brother was killed by extremist Maoists because of the applicant’s father’s political involvement.
d)In May 2007, the applicant’s father was attacked and injured by Maoists but the police failed to act.
e)In May 2008, the applicant pretended to join the Maoists for a short time.
f)On 20 March 2010, the applicant was kidnapped by Maoists but later freed.
g)The applicant was targeted by Maoists because he was critical of their criminal conduct. The applicant was threatened with death by the Maoists. The applicant reported the threat to police but they did nothing to assist the applicant.
h)The applicant also sought police help to evict Maoists from his father’s land. Police made an arrest, following which, the Maoists set fire to the office of the CPN (UML).
i)In April 2010, Maoists raided the applicant’s house causing the applicant to go into hiding and to make his way to Kathmandu.
j)The applicant continues to receive warnings from his family not to return to Nepal because he would be harmed or killed by Maoists.
The Delegate’s decision
On 21 April 2011, attended an interview with a Delegate of the Department and provided the Delegate with further documents.
On 19 April 2011 the applicant provided to the Delegate a statement including further claims for protection, translated supporting letters from members of the Communist Party of Nepal, a copy of his School Leaving Certificate Examination and copies of his passport.
The Delegate found that the applicant had exaggerated his profile and influence in Nepal and did not accept that he had been targeted by the YCL or the Maoists. The Delegate found the applicant’s evidence of ongoing Maoist reproaches to him to be unconvincing. The Delegate found the applicant’s claims of a political profile of concern to the Maoists to be “merely speculative”.
The Delegate found the applicant’s delay of about ten months in seeking protection in Australia to suggest that the applicant had not been fleeing Convention related persecution in Nepal and that his claims were not genuine.
The Tribunal’s review and decision
On 19 July 2011, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 29 September 2011 to give oral evidence and present arguments. The applicant attended the hearing on that date.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent in her written submissions as follows:
5. In its reasons for decision, the Tribunal spelled out the information provided by the applicant on his original visa application form (at CB 135-136; reasons for decision at [20]-[23]), noting that he claimed that he left Nepal because of threats that he received from the Maoists and Maoists YCL, and that he feared “serious harm even death” were he to return. The applicant had indicated that these claims would be elaborated upon in a “statement which will be provided shortly”.
6. At CB 135-144; [24]-[27], the Tribunal referred in considerable detail to the applicant’s evidence at his Departmental interview and also included the four page handwritten statement that the applicant had provided on 19 April 2011 (see CB 138-141).
7. The Tribunal stated at CB 144 [30] that the applicant was represented at the Tribunal hearing by his registered migration agent. At CB 145 [35], the Tribunal noted that it had at the hearing raised with the applicant the fact that as a citizen of Nepal, he had the right to enter and reside in India as a consequence of the 1950 Treaty of Peace and Friendship between India and Nepal to which the applicant is reported to have responded that it was not safe for him to live in India as the Maoists were active there as well (CB 145 [35]).
8. In the section of its decision headed “Findings and Reasons” the Tribunal canvassed country information about India, and about the right of Nepalese to live in India, in some detail (see CB 145-152) before going on to set out its findings at CB 152 ff ([43] ff) as follows:
8.1 The Tribunal was satisfied that the applicant was a citizen of Nepal (CB 152; [43])
8.2. The Tribunal did not consider it necessary to consider the applicant’s claims for protection against Nepal other than to identify who he states would harm him in India (ie, Maoists). (CB 152, [45]).
8.3 There is an international bilateral agreement between India and Nepal that grants to the holder of a Nepalese passport such as the applicant a right to enter and reside in India and under which he has “the same privileges in the matter of residence, ownership of property, participation of trade and commerce, movement” etc as would an Indian passport holder (CB 152, [46]).
8.4 The Tribunal noted that the applicant had not claimed that he could not enter India, nor did he claim that he would be removed from India by the Indian authorities (CB 152, [47]).
8.5 The Tribunal therefore found that the applicant had a “presently existing, legally enforceable right to enter and reside in India, should he be fearful of persecution in Nepal” (CB 152, [48]).
8.6 The Tribunal noted that some of the country information it had referred to pointed to the existence of some evidence, “equivocal at best”, that suggested that from time to time “some foreigners and refugees may experience problems in India. (CB 153, [50]). However, the Tribunal found that “the weight of the country information … does not support the proposition that the applicant faces a real chance of experiencing serious harm capable of amounting to persecution in India”. (CB 153, [51]).
8.7 The Tribunal also noted that the fact there was evidence of Indian authorities’ having arrested or deported suspected Nepalese Maoists suggested that their activities were not tolerated in India (CB 153, at [52]). And, in the Tribunal’s view there was only a “remote possibility of the applicant even encountering any Nepalese Maoists” in India, let alone “ones who might recognise and seek to harm the applicant for a Convention reason. For this reason … the country information does not suggest that the applicant is at risk of refoulement from India to Nepal”: rather, it was the Nepalese Maoists who may face such a risk (CB 153[52]).
9. The Tribunal concluded that the applicant had a “presently existing, legally enforceable right to enter and reside in India and has not taken all possible steps to avail himself of that right”. The Tribunal also found that for the purpose of s 36(4) of the Act, 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 a country where he does have a well founded fear of persecution for the purposes of s 36(5).
10. It concluded that “[a]ccordingly, s 36(3) of the Act applies to the applicant, and Australia does not owe protection obligations to him on that basis” (CB 153 [53]). “Therefore the applicant does not satisfy the criterion set out in s 36(2) for a protection visa.”
The proceeding before this Court
The applicant was unrepresented before this Court, although he had the assistance of an interpreter in the Nepalese language.
On 16 March 2012, the applicant attended a directions hearing before Registrar Tesoriero. The applicant confirmed that he wished to continue with the application. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.
At the directions hearing, the applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The applicant has participated in the Court’s Legal Advice Scheme and received free legal advice. The applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
At the commencement of the hearing, the applicant confirmed that he had not filed any amended application, evidence or submissions in support of his application and that he had no further documents to present to the Court this morning in support of his application.
The applicant confirmed that he relied on the grounds contained in an application filed on 13 February 2012 as follows:
“1. That the decision of the second respondent was affected by Jurisdictional error.
2. That the second respondent failed to complete the exercise of its jurisdictional because it did not address the totality of the applicant’s claims.”
[Errors in the original.]
Each of the grounds was interpreted for the assistance of the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally.
Grounds 1 and 2
Grounds 1 and 2 are not supported by particulars, evidence or written submissions.
In support of ground 1, the applicant said that it was not safe for him to go to India and that the Tribunal had only looked at positive country information in relation to India and had not considered the negative country information about the risks to the applicant from Maoists in India. However, the applicant confirmed that he did not suggest that there was information provided to the Tribunal by the applicant which the Tribunal had failed to consider.
In relation to ground 2, I asked the applicant which of his claims the Tribunal had failed to consider. The applicant responded that he is a victim of Maoists and is not safe in India.
The applicant completed his submissions in support of his application saying he did not agree with the Tribunal’s decision that he could reside in India.
The Tribunal’s decision to affirm the decision under review was made in the context of the Tribunal’s consideration of s.36(3) of the Act. The Tribunal found that, based on country information before it, there is an international bilateral agreement between India and Nepal known as the 1950 Indo-Nepal Treaty of Peace and Friendship (“the Indo-Nepal Treaty”). The Tribunal found that Art.7 of the Indo-Nepal Treaty had the effect that, as the holder of a Nepalese passport, the applicant could enter and reside in India. The Tribunal noted that the applicant’s Nepalese passport is valid until 9 November 2019. The Tribunal also noted that at the hearing the applicant accepted that he could go to India and did not claim that he would be removed from India by India.
The Tribunal had regard to country information that the provisions of the Indo-Nepal Treaty are respected as a matter of fact and that citizens of India and Nepal can each enter each other’s country.
In the circumstances, the Tribunal found that the applicant has a presently existing and legally enforceable right to enter and reside in India.
The Tribunal noted that the applicant stated in his protection visa application that he had not travelled to any other country outside Nepal before coming to Australia. Accordingly, the Tribunal found that the applicant has not taken any steps to avail himself of his presently existing and legally enforceable right to enter and reside in Australia.
There is no error in the Tribunal’s construction and application of s.36(3) of the Act to the facts found by the Tribunal.
Section 36(3) of the Act is satisfied as long as the person’s right to enter and reside in another country exists, however it arose or is expressed and “can be temporary in nature and last for no particular period greater than the time taken to meet the exigency that gave rise to the non-citizen’s well-founded fear of persecution whence he or she had fled” (see SZMWQ v Minister for Immigration and Citizenship [2010] 187 FCR 109 at [34]-[36] per Rares J).
The findings and conclusions made by the Tribunal in its consideration of s.36(3) of the Act were open to it on the evidence and material before it and for the reasons it gave.
The Tribunal then correctly went on to consider s.36(4) of the Act and was not satisfied on the evidence and material before it that the applicant faced a real chance of experiencing serious harm of persecution for a Convention reason in India.
The Tribunal also considered s.36(5) of the Act and found that, on the evidence and material before it, the applicant was not at risk of refoulement from India to Nepal.
Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.
Accordingly, the Tribunal’s conclusion that s.36(3) of the Act applies to the applicant and that Australia does not owe protection obligations to the applicant on that basis is without error.
In relation to the applicant’s complaint in support of ground 2 that the Tribunal had failed to consider whether the applicant would be safe in India, a fair reading of the Tribunal’s decision record does not support such a contention.
The post-hearing submission provided to the Tribunal by the applicant’s migration agent refers only to country information in relation to India. The Tribunal accepted that some of the country information suggested that from time to time some foreigners and refugees may experience problems in India. However, the Tribunal found the evidence in support of that proposition to be “equivocal at best”. Accordingly, the Tribunal gave that information little weight.
The Tribunal also referred to country information before it that did support the proposition that Nepalese men in India face systematic and discriminatory harm for a Convention reason. Further, the Tribunal found that the activities of Nepalese Maoists in India is not tolerated and such persons have been arrested or deported. The Tribunal found there is only a remote possibility that the applicant may even encounter any Nepalese Maoists in India, let alone ones who may recognise him and seek to cause him harm for a Convention reason. Based on the country information, the Tribunal found that it is only Maoists suspected of criminal activity or of being a security risk that are at risk of refoulement from India to Nepal. The Tribunal found that there was only a remote possibility that the applicant would be suspected of being a Maoist or security risk if he was to invoke his right to enter and reside in India.
It is well settled that the country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
Again, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.
In the circumstances, the grounds of the application do not identify any jurisdictional error on the part of the Tribunal and appear more to be a disagreement with the findings and conclusions of the Tribunal. Such complaints invite merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
Accordingly, the grounds in the application are not made out.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the applicant matters of concern it had about his evidence both at the hearing and in writing and noted the applicant’s responses. The Tribunal also put to the applicant independent country information before it and invited the applicant to comment upon it, and noted the applicant’s response in detail. The Tribunal also identified in detail independent country information to which it had regard. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 31 July 2012
0