SZREH v Minister for Immigration
[2012] FMCA 525
•15 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZREH v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 525 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Nepal – Tribunal finding that Australia owes no protection obligations to the applicant because of his entitlement to live in India – no jurisdictional error. |
| Migration Act 1958 (Cth), s.36 |
| Applicants in V 722 of 2000 v Minister for Immigration [2002] FCA 1059 NBLC v Minister for Immigration (2005) 149 FCR 151 SZMWQ v Minister for Immigration [2010] FCAFC 97 |
| Applicant: | SZREH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 349 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 15 June 2012 |
| Delivered at: | Sydney |
| Delivered on: | 15 June 2012 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms N Johnson Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 349 of 2012
| SZREH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 16 January 2012. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Nepal and had made claims of political persecution. The following statement of background facts concerning the applicant’s claims and the decisions of the delegate and the Tribunal on them is derived from Minister’s submissions filed on 4 June 2012.
The applicant is a citizen of Nepal who arrived in Australia on 12 December 2010 on a false passport[1] and applied for a protection (Class XA) visa on 10 March 2011[2].
[1] court book (“CB”) 13
[2] CB 1-25
The applicant’s claims to fear persecution were contained in his protection visa application[3] and a two-page statement dated 25 April 2011[4]. The applicant feared harm in Nepal because he was a Monarchist and a member of the Rastriya Prajantra Party (RPP). He claimed to have operated a small business in Nepal and to have been subjected to demands for money and physical abuse by Maoists.
[3] CB 17-20
[4] CB 37-38
The delegate’s decision
On 7 April 2011, a delegate of the Minister invited the applicant to attend an interview scheduled for 3 May 2011[5]. The applicant attended that interview and gave evidence in support of his claims[6].
[5] CB 34-35
[6] CB 46.4-46.9
On 4 May 2011, the delegate made a decision refusing to grant the applicant a protection visa[7]. On the basis of the accepted country of origin information (COI) the delegate found that the applicant had a legally enforceable right to enter and reside in India within the meaning of s.36(3) of the Migration Act 1958 (Cth) (“the Migration Act”)[8]. Although not necessary in light of the delegate’s finding that s.36(3) applied, the delegate also found, on the basis of COI, that the political situation for RPP members in Nepal was not as the applicant had presented[9]. The delegate also concluded that the applicant was not of interest to non-state agents in Nepal due to his political opinion[10] and further, found that there was no evidence that the applicant would be denied state protection in Nepal[11].
[7] CB 45-53
[8] CB 49.6
[9] CB 50
[10] CB 51
[11] CB 52.6
The Tribunal’s proceedings
On 1 June 2011, the applicant lodged an application with the Tribunal to review the delegate’s decision[12].
[12] CB 54-57
By a letter dated 19 July 2011, the Tribunal invited the applicant to attend a hearing before the Tribunal scheduled for 27 September 2011[13]. The applicant accepted that invitation[14] and attended the hearing on 5 January 2011 to give evidence and present arguments in support of his claims[15]. At the hearing, the applicant submitted a number of documents, namely country information[16] and “personal documents”[17].
[13] CB 59
[14] CB 60-61
[15] CB 147-149; CB 224, [24]-[36]
[16] CB 62-126
[17] CB 127-146
Following the hearing, the applicant submitted to the Tribunal various further media articles in support of his application[18].
[18] CB 150-213
The Tribunal’s decision
In a decision dated 16 January 2012, the Tribunal affirmed the delegate’s decision to refuse the applicant’s application for a protection visa[19].
[19] CB 215-233
On the basis of the accepted COI, the Tribunal found that the applicant had the right to enter and reside in India[20]. The Tribunal also found that the applicant had not taken all possible steps to avail himself of his right to enter or reside in India[21].
[20] CB 231-232, [46]-[48]
[21] CB 232, [49]
On the basis of the information before it, The Tribunal also found that the chance that the applicant would be refouled to Nepal by India was remote[22]. The Tribunal further found further that the applicant did not have a well-founded fear of persecution in India[23]. Accordingly, the Tribunal found ss.36(4) and 36(5) did not apply to the applicant[24].
[22] CB 232, [52]
[23] CB 232, [51]
[24] CB 232-233, [52]-[53]
Consequently, the Tribunal found that Australia did not owe protection obligations to the applicant as s.36(3) applied to him[25].
[25] CB 233, [53]
These proceedings began with a show cause application filed on 16 February 2012. There are two grounds in that application:
1. It is contended that the Tribunal Member ignored me for my safety as the issue of so-called relocation to India the Tribunal Member relied upon was so unreasonable or so inadequate the only inference was that the Tribunal applied the wrong test or was not in reality satisfied in respect to the correct test. I am a true victim of the impulsive decision made by the Tribunal member in my case.
2. I argued that I was denied procedural fairness based on the Tribunal’s findings that I could avoid persecution in Nepal by relocating to India and the rejection of my fear of being harmed by the Maoists in India. It’s more than illogical to think that India has the same justice and human rights as Australia. The situation in India be viewed like in Australia was an irrelevant consideration, and taking an irrelevant consideration into account to refuse to grant me a protection was a jurisdictional error.
The application is supported by an affidavit filed on the same day. I received paragraphs 1, 2 and 4 of that affidavit as evidence and paragraph 3 as a submission. I also have before me as evidence the court book filed on 22 March 2012.
This case calls for consideration of s.36(3) of the Migration Act:
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.
The section at the relevant time contained the limiting provisions in subsections (4) and (5):
(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.
The Minister submits, and I accept, that the Tribunal followed the correct approach in applying the section.
In this case, the Tribunal found, on the information before it, that the applicant had a “presently existing, legally enforceable right to reside temporarily” in India[26]. It is trite law that the state and effect of the law of a foreign country were questions of fact for the Tribunal to determine[27]. Further, while the words “possible steps” in s.36(3) should be not construed as “reasonably available steps” or “reasonably practicable steps” or “reasonably possible steps”[28], the applicant did not claim or submit any information that he had taken any steps to avail himself of his right to enter and reside in India.
[26] CB 232, [48]
[27] Applicants in V 722 of 2000 v Minister for Immigration [2002] FCA 1059 at [72]
[28] NBLC v Minister for Immigration (2005) 149 FCR 151 at [2] per Wilcox J, [12] per Bennett J and [63]-[64] per Graham J
Nor was there any error in the Tribunal’s application of ss.36(4) and (5). The Tribunal’s findings that the applicant did not have a well-founded fear of persecution in India, and would not be refouled to Nepal by India, were findings that were open to it on the material before it[29]. Outside of the limitations on s.36(3) imposed by ss.36(4) and 36(5), the Tribunal was under no obligation to assess the consequences for the applicant or “reasonableness” of the applicant residing in India. Potential hardships of living in the third country, not amounting to Convention persecution, were not, at the time of the decision, relevant to an assessment under s.36(3)[30]. Accordingly, at the time of the decision, by operation of s.36(3), the Tribunal was not required to determine whether the applicant feared for his safety if he was required to return to Nepal[31].
[29] CB 232, [52]
[31] I express no view as to the extent to which the Tribunal’s obligations have been affected by the complementary protection amendments to the Migration Act, which took effect on 24 March 2012.
The Tribunal’s findings in relation to s.36(3) were clearly open to it on the material before it and for the reasons it gave. There was nothing “illogical” or “unreasonable” about those findings, such as to establish jurisdictional error[32].
[32] Minister for Immigration v SZJSS (2010) 273 ALR 122
Section 36(3) of the Migration Act has been considered by the courts on several occasions. It was considered by the Full Federal Court in SZMWQ v Minister for Immigration[33] from [73]. It was considered specifically in relation to Nepalese asylum seekers by Graham J in (SZLAN v Minister for Immigration[34]. His Honour, in that case, dealt with the history of the legislation at [52] and considered its application in relation to the 1950 Treaty of Peace and Friendship between India and Nepal at [54] onwards. His Honour found no error in the approach by the Tribunal in the application of s.36(3) in that case.
[33] [2010] FCAFC 97
[34] (2008) FCA 904
Likewise, in this case, I find no jurisdictional error in the Tribunal’s application of the section. By the application of the section, the Tribunal was relieved of any obligation to consider the applicant’s claims for protection in Australia. He finds that a harsh outcome and while one may have sympathy for his circumstances, it is the duty of the Tribunal and this Court to apply the applicable legislation enacted by Parliament.
The applicant has failed to demonstrate any jurisdictional error by the Tribunal. It follows that the decision is a privative clause decision and the application must be dismissed. I so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $4,200. The applicant expressed his dissatisfaction with the outcome of these proceedings. I am satisfied that costs should follow the event. I am also satisfied that costs of not less than $4,200 have been reasonably and properly incurred when considered on a party and party basis. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,200.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 24 June 2012
[30] SZOWQ v Minister for Immigration & Anor [2011] FMCA 248 at [28]
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