SZRDX v Minister for Immigration
[2012] FMCA 838
•14 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRDX v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 838 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal. ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it misapplied sub-ss.36(3), (4) and (5) of the Migration Act 1958 (“Act”) and failed to comply with its obligations under s.424A of the Act. WORDS AND PHRASES – “Person” where used in s.424A of the Act means a natural person. |
| Migration Act 1958, ss.36, 424A, 474 Acts Interpretation Act 1901, s.2C |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Multicultural Affairs v Applicant C (2001) 116 FCR 154 SZLAN v Minister for Immigration & Citizenship (2008) 171 FCR 145 Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 Plaintiff M70/21011 v Minister for Immigration & Citizenship (2011) 244 CLR 144 SZMWQ v Minister for Immigration & Citizenship (2010) 187 FCR 109 Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 NAGV and NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 222 CLR 161 |
| Applicant: | SZRDX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 323 of 2012 |
| Judgment of: | Cameron FM |
| Hearing date: | 10 September 2012 |
| Date of Last Submission: | 10 September 2012 |
| Delivered at: | Sydney |
| Delivered on: | 14 September 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Parish Patience |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 323 of 2012
| SZRDX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Nepal who arrived in Australia on 4 November 2010. On 18 February 2011 he lodged an application for a protection visa with the Department of Immigration and Citizenship, alleging that he feared persecution in Nepal because of his political opinion. That application was refused by a delegate of the first respondent (“Minister”) on 3 May 2011. The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. He 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 4-12 of the Tribunal’s decision. Relevant factual allegations are summarised below.
The applicant made the following claims in a statement accompanying his protection visa application:
a)he became a member of the Rastriya Prajatantra Party (“RPP”) in 2007. He was also a “hardcore” monarchist;
b)the Maoists asked him to join them. He refused and was subsequently forced to leave the country to save his life;
c)he was politically active in his district during the constituent assembly elections in 2008. As a result of his activities, he was arrested and beaten by Maoists;
d)after the fall of the monarchy, members of the RPP were targeted by Maoists and the Young Communist League (“YCL”);
e)he was attacked by members of the YCL in July 2010 while giving a speech on the occasion of the former king’s birthday. He went into hiding after the attack;
f)the authorities in Nepal were unable to protect him; and
g)as a prominent anti-Maoist, he would experience persecution because of his political opinion. Further, he would not be able to express his views safely and would have to conceal his political opinion or risk the adverse attention of Maoists.
On 8 September 2011 the Tribunal received a statutory declaration from the applicant addressing some of the matters raised by the delegate in her decision record. The applicant also referred to a further claim which he had made at his interview with the delegate, namely that he had been kidnapped by Maoists in April 2004, but which, he said, had been omitted from his original statement because of translation issues.
The applicant appeared before the Tribunal on 26 September 2011 to give evidence. He made no new claims at that hearing.
The Tribunal’s decision and reasons
In its decision of 11 January 2012 the Tribunal accepted that in the past members of the YCL had persecuted the applicant because of his political beliefs and activities. It also accepted that the Nepalese government had failed or was unable to protect the applicant and that there was a real chance that he might again be systematically targeted for serious harm by those who opposed his political stance.
However, the Tribunal found that the applicant had a presently existing and legally enforceable right to enter and reside in India pursuant to the Indo-Nepal Treaty of Peace and Friendship of 1950 (“Indo-Nepal Treaty”) but had not taken all possible steps to avail himself of that right as required by s.36(3) of the Act. The Tribunal also found that the applicant did not have a well-founded fear of being persecuted in India for a Convention reason, noting that:
a)although country information suggested that foreigners and refugees in India experienced problems from time to time, the evidence in support of this proposition was equivocal at best;
b)the fact that the Indian authorities had arrested or deported suspected Nepalese Maoists suggested that their activities were not tolerated in India;
c)given the size and population of India, the possibility of the applicant encountering any Nepalese Maoists in that country, let alone ones who might recognise and seek to harm him, was remote; and
d)country information did not suggest that the applicant was at risk of refoulement from India to Nepal.
Having found that s.36(3) of the Act applied to the applicant, the Tribunal was not satisfied that he was a person to whom Australia had protection obligations under the United Nations Convention relating to the Status of Refugees 1951, as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).
Proceedings in this Court
In his amended application the applicant alleged:
1.The Tribunal failed to exercise its jurisdiction to review the decision of the delegate because it misinterpreted, or incorrectly applied, parts of s.36 of the Migration Act, specifically:
a.The Tribunal misinterpreted subsection 36(3) in its application to the case before it.
b.The Tribunal misinterpreted subsection 36(5) in its application to the case before it.
c.The Tribunal failed to give proper consideration to the Applicant’s claims in respect of subsection 36(4).
2.The Tribunal failed to exercise its jurisdiction because it did not comply with s.424A of the Act in relation to information than came within that section.
Misinterpretation of s.36 of the Act
At the time of the Tribunal’s decision, s.36 relevantly provided:
36 Protection visas
(1)There is a class of visas to be known as protection visas.
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)a non‑citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(b)a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa.
Protection obligations
(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. …
Misinterpretation of s.36(3)
The applicant referred to Minister for Immigration & Multicultural Affairs v Applicant C (2001) 116 FCR 154 and SZLAN v Minister for Immigration & Citizenship (2008) 171 FCR 145 and submitted that the law in relation to s.36 as discussed in those authorities is now subject to what the High Court has said about Australia’s protection obligations in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 and in Plaintiff M70/21011 v Minister for Immigration & Citizenship (2011) 244 CLR 144.
In this connection the applicant submitted:
15.Subsection (3) has no practical purpose unless the person concerned has already been found to be someone who, absent its operation, would be a person to whom Australia has protection obligations. In that context, and mindful of the interpretative approach taken by the High Court in the cases mentioned above, it is submitted that it could not be a proper interpretation of the subsection to say that Australia could relieve itself of its obligations under the Convention if a person had a right to enter and remain in a country which did not have at least the same obligations. In the Malaysian Solution Case [i.e. Plaintiff M70] the Court said at [126] with reference to protections “of the kind described in s 198A(3)(a)(ii) or (iii)” (relating to protection of persons seeking asylum, or who have been recognised as refugees pending their voluntary repatriation or resettlement), that a country did not provide such protections “unless its domestic law deals expressly with the classes of persons mentioned in those sub-paragraphs or it is internationally obliged to provide the particular protections.”
16.In short, the context in which the Act as a whole, and s 36 in particular, are to be interpreted necessarily implies that Australia cannot transfer its protection obligations to another country unless that country is bound either expressly by its domestic law or under some international obligation to provide all of the protections to which refugees are entitled under the Convention and Protocol.
17.The Tribunal was aware that India is not a party to the Convention or Protocol (CB 102, [57]). In the face of contradictory evidence, the Tribunal made no finding as to whether India was bound either expressly by its domestic law or under some international obligation to provide all of the protections to which refugees are entitled under the Convention and Protocol. The Tribunal erred in not doing so.
However, as the applicant conceded in para.14 of his written submissions, neither Plaintiff M61 nor Plaintiff M70 specifically dealt with s.36(3). In such circumstances, I am bound to apply s.36(3) as explained in Applicant C, SZLAN and SZMWQ v Minister for Immigration & Citizenship (2010) 187 FCR 109. That is to say, if an applicant fails to demonstrate that he or she has taken all possible steps to exercise such legally enforceable entry and residency rights as he or she may have in another country, Australia is taken not to have protection obligations to that person. If, in light of what was said in Plaintiff M61 and Plaintiff M70 it is the case that Applicant C, SZLAN and SZMWQ were incorrectly decided, as the applicant formally submitted, then it is for the Federal Court or the High Court to say so, not this Court: Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 at 177.
In any event, it is not apparent that Plaintiff M61 and Plaintiff M70 have the effect contended for by the applicant; for instance see the discussions of s.36(3) and its related provisions, ss.91M-91Q, in Plaintiff M70 at 175-176 [46]-[48], per French CJ and at 198 [122] per Gummow, Hayne, Crennan and Bell JJ.
In this case, the Tribunal applied s.36(3) in accordance with the law as stated in Applicant C, in SZLAN and in SZMWQ and I therefore find that it did not err.
For these reasons, this aspect of the first ground of the amended application is not made out.
Misinterpretation of s.36(5)
The applicant argued that the evidence before the Tribunal demonstrated that India would return Nepalese citizens to Nepal if they were Maoists, potential terrorists or suspected of being security risks. In that context he submitted that:
As with subsection (3), this provision must be read in the context of Australia’s obligations under the Convention and Protocol. The core obligation of non-refoulement is absolute. Even in cases where Article 32 permits a refugee lawfully present in a State to be expelled on “grounds of national security or public order”, it is clear from Article 33 that such expulsion must never involve refoulement to a country where he or she would be under threat of persecution for a Convention reason. The fact that India accepts no such obligation placed an onus on the Tribunal to consider whether, if at any time the Applicant were to be considered a threat to national security or public order, he might be subject to refoulement rather than expulsion, permissible under the Convention, to a safe country.
Although expressed to refer to s.36(5), this argument is really a variant of the applicant’s submissions in relation to s.36(3). The applicant says that the Crown’s statutory power to refuse protection to individuals is limited by its obligations under the Convention, relevantly that that power operates subject to an overarching legislative intention that the Act’s provisions are intended to facilitate Australia’s compliance with the obligations undertaken in the Convention, referring to Plaintiff M61 at 339 [27], Plaintiff M70 at 192 [98] per Gummow, Hayne, Crennan and Bell JJ and NAGV and NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 222 CLR 161 at 171-172 [22]-[26] per Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ. However, the relevant statutory power said to be subject to that limitation is the one found in s.36(3). Section 36(5) is an exception to that power, not an expression of it. Consequently, this submission is misdirected by being addressed to s.36(5) rather than to s.36(3) and, for the reasons already given above at [15]-[16], is not made out in relation to the latter provision.
Failure to give proper consideration to s.36(4)
As summarised in the Tribunal’s decision record, the applicant told the Tribunal that he was afraid that, were he to relocate to India, the people he feared in Nepal might find him there, that he would “not be protected for very long” and that in India he would not receive the protection he could receive in Australia. The applicant submitted that the Tribunal misunderstood his claim to fear being pursued in India by the Nepalese Maoists and, instead, considered only the possibility that he might randomly encounter Maoists in India. He submitted that the Tribunal failed to give proper consideration to s.36(4) and that this was evidenced by the statement it made in its decision that:
… given the size and population of India, the Tribunal considers that there is only a remote possibility of the applicant even encountering any Nepalese Maoists in that country, [let] alone ones who might recognise and seek to harm [him] for a Convention reason.
However, the applicant’s argument on this subject overlooks what the Tribunal had said in the sentence preceding the one just quoted, namely:
The reference to the Indian authorities having arrested or deported suspected Nepalese Maoists suggests that their activities are not tolerated in India.
It was in this sentence, not the one cited by the applicant, that the Tribunal dealt with the claim to fear Nepalese Maoists in India. The Tribunal should be understood to be saying that if the applicant were to be located by pursuing Nepalese Maoists, then the Maoists would be deported with the consequence that the applicant would enjoy adequate state protection if resident in India. For this reason, this allegation is not made out.
Failure to comply with s.424A
Section 424A of the Act relevantly provides:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) …
(2A) …
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; …
The applicant submitted that in breach of its obligations under s.424A(1) the Tribunal failed to put to him certain information which it had cited in para.59 of its reasons. In that paragraph the Tribunal said:
… On 12 July 2011, a request for information was made to the Embassy of Nepal, Canberra. On 22 July 2011, RRT Country Advice received the following response:
1.Do Nepalese citizens have the legal right to enter and reside in India?
Yes, with the provisions enshrined in the Treaty of Peace and Friendship signed on 31 July 1950, the Nepalese citizen has the right to enter and reside in India. Recently, we have a provision to show any valid ID card to prove the identity so that they can enter into each other’s country without any hindrance.
2.Are there any circumstances in which a Nepalese citizen may be denied entry to India?
Generally no. As per the provisions of the treaty between Nepal and India, citizens of both countries can enter into each other’s country without visa.
3.Can Nepalese citizens residing in India be forcibly returned to Nepal? If so, under what circumstances?
Legally No. For those involved in crimes and other unwanted activities, Governments of either country can extradite each other’s nationals as per the provisions of a seperate (sic) Extradition Treaty.
The applicant submitted that although some of that information fell within the exception to the operation of s.424A(1) found in s.424A(3)(a), some of it did not. The applicant submitted that information which concerned the actions, behaviour or practices of the Republic of India fell into the latter category.
The applicant submitting that as the Republic of India was a body politic, s.2C of the Acts Interpretation Act 1901 deemed it to be a “person”. He argued that this meant that because information about the Republic of India was information about a person, and thus not information governed by the s.424A(3)(a) exception, it should have been given to him by the Tribunal pursuant to s.424A(1).
Section 2C of the Acts Interpretation Act relevantly provides:
2C References to persons
(1)In any Act, expressions used to denote persons generally (such as “person”, “party”, “someone”, “anyone”, “no‑one”, “one”, “another” and “whoever”), include a body politic or corporate as well as an individual. …
However, s.2(2) also provides that the application of the Acts Interpretation Act to an Act is subject to a contrary intention which may be expressed in or inferred from the latter Act.
The context in which the word “person” is used in s.424A(3)(a) indicates that the interpretation pressed by the applicant should not be accepted. The paragraph refers to information that is not specifically about the applicant “or another person”. The context and particularly the use of the word “other” indicates that “person” is intended to mean a natural person, as an applicant is. That meaning is reinforced by the latter part of the paragraph, which speaks of “a class of persons of which the applicant or other person is a member”, plainly intending to mean natural persons. The necessary implication from the manner in which the paragraph has been drawn is that, relevantly, it does not refer to the applicant or “another body politic” but to the applicant or “another natural person”. I conclude that “person”, where used in s.424A(3)(a), does not include the Republic of India.
Further, the information in question was not, in fact, about the Republic of India but about Nepalese citizens, a class of persons of which the applicant is a member, or about Nepalese citizens in India, of which the applicant would be a member were he to relocate there as postulated. As such, the information fell squarely within s.424A(3)(a).
For these reasons, the Tribunal had no s.424A(1) obligations in respect of the information in question.
The second limb of the second ground was that the provenance of the information should have been given to the applicant pursuant to s.424A(1). However, as the information did not have to be provided, its provenance did not need to be given either.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 14 September 2012
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