SZRUT v Minister for Immigration & Anor
[2015] FCCA 263
•5 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRUT v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 263 |
| Catchwords: MIGRATION – Refugee Review Tribunal – whether it was reasonable to seek protection in a third country – application dismissed. |
| Legislation: Migration Act 1958 |
| Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91 SZRTC v Minister for Immigration & Border Protection [2014] FCAFC 43 |
| Applicant: | SZRUT |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 944 of 2014 |
| Judgment of: | Judge Street |
| Hearing date: | 5 February 2015 |
| Date of Last Submission: | 5 February 2015 |
| Delivered at: | Sydney |
| Delivered on: | 5 February 2015 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | Mr B D Kaplan |
| Solicitors for the Respondent: | DLA Piper |
ORDERS
The application for leave to extend time under s.477 of the Migration Act 1958 be dismissed.
The applicant pay the First Respondent’s costs fixed in the sum of $6825.
I direct pursuant to s.91X of the Migration Act 1958 that the name of the Applicant and date of birth in the transcript of the proceedings not be published.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 944 of 2014
| SZRUT |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is a matter within the court’s jurisdiction under s.476 of the Migration Act 1958 in which the applicant is seeking a constitutional writ. The grounds of the application are as follows.
1. The Refugee Review Tribunal erred in law in considering that I have a right to enter and reside in India a country I have never lived.
2. The Tribunal failed to consider my subjective well founded fear of persecution and the violence against Christians in India, fear of sexual harassment and rape and other problems such as lacking Indian language.
3. The Tribunal misunderstood my case and misapplied the law.
The proceedings were commenced on 7 April 2014 and leave is required under s.477. This is a case in which the question of leave really turns on the substance of the merits of the application advanced asserting jurisdictional error in the decision of the Tribunal delivered on 19 February 2014. The applicant had made an application for a Protection (Class XA) visa under s.65 of the Act. The applicant was found to be a citizen of Nepal and the delegate refused to grant the visa on 22 March 2012.
The matter was previously considered by a Tribunal differently constituted (the first Tribunal). As a result of a judicial review, the case was returned to the Tribunal by the Federal Court on 20 November 2013 ( the second Tribunal). In the reasons for decision the second Tribunal has identified the criteria for a protection visa set out in s.36 in Schedule 2 to the Migration Act 1958. The second Tribunal has turned to the fact that an application for a visa must meet one of the alternative criteria under s.36(2)(a), (aa), (b) or (c). The second Tribunal has noted that the applicant’s claims are made in her own right and not as a member of a family unit.
The second Tribunal has carefully identified what is required under s.36(2)(a):
7. If a person is found not meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm under s.36(2)(aa) (‘the complementary protection criterion’).
The second Tribunal then proceeded to identify that:
8. …Australia will not owe protection obligations if, as provided in s.36(3), the non-citizen has what is generally referred to as ‘safe third country protection’.
The second Tribunal set out the provisions of subs.(3) as well as addressing the significance of the requirements of subsections (4), (5) and (5)(a). The second Tribunal then turned to address carefully the claims for protection by the applicant, who travelled to Australia as the holder of a student visa and completed a university course and was refused a Skilled (Provisional) (Class VC) visa and then applied for a review of that decision and the MRT affirmed the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.
It was following this that the applicant applied for a protection visa which the delegate originally refused on 22 March 2011 and the applicant then applied on 11 April 2012 to the Refugee Review Tribunal for a review by a Tribunal differently constituted. Materially, given the substance of the submissions by the applicant, I note that the second Tribunal said in paragraph 12:
12. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.
A complaint that was developed by the applicant was that the second Tribunal had not had regard to the content of the letter she had written dated 23 August 2012 or the content of certain material elsewhere identified in the court book. In light of what is said by the second Tribunal, I am satisfied that the second Tribunal has had proper regard to the material that was before it in relation to the findings that the second Tribunal has made and that it had regard, relevantly, to the letter of 23 August 2012 and to the content of concern identified by the applicant in relation to relocation in respect of the flow of people from Nepal and Bangladesh to India.
There was a reference by the applicant to the concerns of Nepalese women being trafficked into prostitution and observations made in relation to the trafficking of young Nepalese women to India. I am satisfied that the second Tribunal has properly had regard to those matters in the findings it made.
The second Tribunal set out in some detail the applicant’s history and in particular her Christian faith, and has addressed that in Nepal, being a majority Hindu country, Christianity is despised by many in Nepal. The applicant provided detail of her religious beliefs and why she is committed to them including what was said by the applicant before the first Tribunal as to her claims.
The applicant was identified by the first Tribunal in the hearing on 9 August 2012 to be fluent in English and explained that she feared being persecuted by her family. The applicant identified that she has a brother living in Australia and that her elder married sister and twin younger brothers live with her parents in Nepal. The issue of whether the applicant was facing a problem returning to Nepal because of her Christian background was raised with the applicant. It was also put to the applicant, expressly by the first Tribunal, that there was another option if she did not wish to return to Nepal, which was to go to India.
The applicant was provided with the US State Department’s 2011 International Religious Freedom Report for India and the applicant was advised by the first Tribunal that information did not indicate that there was generally persecution against Christians in Nepal, despite isolated attacks in some states by Hindu extremists. The first Tribunal said that the Constitution protects religious beliefs and there is a concentration of a Christian population in the north eastern states in India. The first Tribunal then said that:
13. …For a person as educated and experienced as the applicant, who has lived and been academically successful in Singapore and Australia, it appeared that she could take up the option to go to India if she did not want to go back to Nepal.
The first Tribunal asked the applicant whether she was concerned about anyone else in Nepal. The applicant said:
13. …she did not know anything much about Nepal but what the media says is different from what’s actually going on.
The first Tribunal noted:
13. …It was put to the applicant that large human right organisations which reported on religious freedom did have people on the ground in countries like Nepal and India and the majority of incidents would be reported.
…
The applicant was asked about her concerns of discrimination against women and the applicant said that she was the object of discrimination because she is of the Rai caste and looks different from the majority.
…
The applicant was asked whether there was any reason she could not go to India if she did not want to go back to her parents. She said that she had been told that Nepalese are discriminated against in India. It was put to her that this might be the case, but if one was concerned about being subjected to serious harm in Nepal, then India might offer an alternative.
The Tribunal located on the internet an application for information about Hope Church in Kathmandu, having told the applicant that if she searched for Christian churches in Kathmandu she would find several of them, including Kaneshwor Church which had public celebrations, for Christmas, for example. If the applicant decided to live and work in Kathmandu in order to avoid her parents, she could rely on support from the Christian community there. Furthermore, she was clearly an intelligent and well qualified person who had lived successfully without parental support in Singapore and Australia and who, therefore, could subsist in Nepal.
It is important to have regard to the fact that the second Tribunal in setting out the above parts of the decision from the first Tribunal was clearly drawing its attention to and considering whether, as a matter of practical reality and fact, the applicant was a person who would be allowed to enter and remain in another country, namely, India.
The second Tribunal continued quoting the first Tribunal, materially, that:
13. …On 23 August 2011 the Tribunal received a submission from the applicant. In her submission the applicant says she will suffer mentally when she goes back to Nepal. She says that she is mentally disturbed by what happened to her when she was a young girl and says “In addition, my own dad’s character who is violent led me to condemn myself.” She says that she attempted to commit suicide though her parents do not know about it, and she has not mentioned it previously. She says that her father used to beat her and punish her for no reason and use abusive language to her.
The applicant said she will not only suffer mentally because of her father but because of being a single unmarried female. She grew up in a modern country like Singapore for about 20 years and female discrimination is unheard of. She will be discriminated against because of her gender in both Nepal and India.
The applicant identified her fears in relation to Nepal in this quote from the first Tribunal set out by the second Tribunal, including:
13. …The applicant said that she became a Christian in October 2004. She will be persecuted for this by her family or society in India or in Nepal.
And, finally, the first Tribunal is quoted as saying:
13. …The applicant claims that she cannot relocate to India because of the discrimination there. She says that there have been reports of rape and assault of foreigners in India and quotes a BBC news report from January 2012 saying that many people from Nepal and Bangladesh face harassment, discrimination and violence in India. The applicant says that many innocent girls are sold into prostitution in India. The applicant says that India will not be secure for her as a Christian and single girl. There is increasing violence against Christianity in India.
To the extent relevant, the above extract from the first Tribunal quoted by the second Tribunal makes crystal clear that the second Tribunal has had regard to the claims and fears expressed by the applicant in considering the issues under s.36 and, in particular, s.36(3). The second Tribunal records that the applicant appeared at a hearing on 18 February 2014 and notes that the second Tribunal was informed that the applicant had all the information and evidence from the previous Department and first Tribunal hearing.
The second Tribunal then put to the applicant what she believed would be the essential problem for her if she now returned to Nepal and that the applicant replied she would face harm as a Christian and as a woman. The second Tribunal expressly explored with the applicant what specifically had occurred in the past which made her believe that she would be harmed now if she returns. The second Tribunal observed that the information that had been put to her at the first Tribunal hearing suggested that she would not have problems simply because she was a Christian in Nepal. The second Tribunal invited the applicant to comment on what had been previously said by the first Tribunal. Materially, at para.24 the second Tribunal said:
24. The Tribunal then turned to the issue of protection in India. The applicant stated that she had never travelled to India. The Tribunal put to the applicant that it is well documented that Nepali nationals can readily enter and reside in India under the Treaty of Mutual Friendship and ongoing administration arrangements, without a visa or further formality.
25. The Tribunal then outlined the provisions of s.36(3) of the Migration Act, noting that in determining whether these provisions apply, relevant considerations include whether the applicant is able lawfully to enter and reside in India either temporally or permanently; whether she has taken all possible steps to avail herself of that right; and whether she would face a real chance of persecution or real risk of significant harm.
It is apparent, in my opinion, that the second Tribunal was not confining itself in the issues that it was considering in this regard simply to the question of the legal right to enter in relation to the requirements of subs.(3) of s.36. The second Tribunal in para.26 noted that it had consulted a range of sources which referred to the rights of Nepalese in India, including rights the same as Indian citizens in relation to employment, property purchase and access to education and health services. The second Tribunal said:
26. …The Tribunal had found no reports including Nepalese and India are targeted for serious or significant harm, although poorer Nepalese were vulnerable to the same employment conditions and exploitation as Indians in the same position.
The second Tribunal continued to refer to the country information in respect of women in India and, relevantly:
27. …The constitution protects religious freedom. There is a concentration of Christian population in the north-eastern states in India.
The second Tribunal continued and noted that:
28. …the previous Tribunal had put to the applicant that for a person as educated and experienced as her who has lived in Singapore and in Australia it appeared she could reasonably go to India if she feared harm in Nepal.
Again, in my opinion, the second Tribunal in this regard was considering the extent to which, as a matter of practical reality and fact, the applicant herself would be able to enter and remain in India. The second Tribunal noted that:
29. …The applicant said that she believed that if she goes to India she will have the same problem of women being raped. Since she has lived overseas she looks different from people there in India. Also, because she is coming from overseas they will think she has money. She does not know what India is like but it is most likely she could be sold into slavery and prostitution.
The Tribunal put to the applicant that India is a large and diverse country of over a billion people with a number of very large and modern cities with employment in commerce and technology. The incidence of such crime would have to be considered in the context of the size of the population as well as the impact predominantly on poorer people.
The second Tribunal gave the applicant some time to consider and further comment on those propositions but the applicant did not seek to put anything further. In my opinion, the second Tribunal was in this regard again considering the practical reality for the applicant to enter and remain in India. The second Tribunal noted that:
32. …The applicant’s perceptions appeared to be coloured by the fact that she spent most of her life outside Nepal. However, as will emerge, it has not been necessary for the Tribunal to reach a concluded view about the claims in relation to Nepal.
The second Tribunal having identified those matters then turned to the third country protection consideration in detail:
33. The primary issue in this case is whether Australia does not owe protection obligations to the applicant because she bas a right to enter and reside in India within the meaning of s.36(3). There is no suggestion that the applicant has a right to enter and reside in a third country other than India.
34. The matters which must be considered by the Tribunal in determining whether third country protection is available to the applicant are:
• whether the applicant, a citizen of Nepal, has a right to enter and reside in India (s.36(3));
• whether she is at risk of Convention-related persecution or 'significant harm' in India (s.36(4));
• whether the Indian authorities might return her to Nepal or another country
• where she is at risk of Convention-related persecution or 'significant harm' (s.36(5) and s.36(5A)); and
• if she has a right to enter and reside in India, whether she has taken all possible steps to avail herself of that right.
Under the heading “Whether the applicant has a right to enter and reside in India” the second Tribunal then turned to the considerations under s.36(3) and the notional meaning of right not being restricted to a legally enforceable right and that it should include the notion of liberty, permission or privilege lawfully given, albeit capable of being withdrawn, and not capable of enforcement or a liberty, permission or privilege that does not give rise to any particular correlative duty upon the State in question. The second Tribunal noted that the applicant has a right to reside in India pursuant to the Treaty of Peace and Friendship between India and Nepal 1950. The second Tribunal said arts. 6 and 7 of the Treaty are the most relevant for present purposes. The second Tribunal noted that those two articles concern treatment to be given to nationals of one country in the territory of the other. Importantly, the second Tribunal noted that art.7 grants to Nepalese nationals in India and Indian nationals in Nepal the same privileges in the matter of residence, ownership, property, participation of trade, commerce, movement and other privileges of a similar nature.
It is again clear that the second Tribunal when referring to the extent of these rights was identifying considerations beyond simply the question of being allowed to enter but also, as a matter of practicality, to remain in India. The second Tribunal set out information provided by the Australian Department of Foreign Affairs and Trade and noted that as the applicant had a Nepalese passport valid until November 2023 it was put to the applicant that as a citizen of Nepal she would be able to enter and reside in India and the applicant did not demur to that proposition.
This is, in my opinion, a material consideration in the reading of the second Tribunal’s decision as a whole in identifying the extent to which it has properly addressed the practical reality, in fact, that the applicant would be allowed to enter and remain in another country, namely, India. It was in this context that the second Tribunal said in para.42:
42. Taking into account the terms of the Treaty itself, the information from Indian and Australian authorities about administrative arrangements concerning entry to India by Nepalese nationals and country information and other commentary on the ability of Nepalese citizens to enter and reside in India, the Tribunal is satisfied that, as a matter of practical reality, the applicant has a right to enter and reside in India.
I should note in this regard that, in my opinion, the second Tribunal has applied the correct test as identified by Buchanan J in Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91 and that the finding by the second Tribunal was one which was open on the material to which I have referred.
The second Tribunal then turned to the question of a risk of Refugees Convention related persecution, or of a significant harm in India and noted in para.43:
Subsection 36(3) of the Act will not apply if the applicant has a well-founded fear of Convention-related persecution in India or there are substantial grounds for believing that, as a necessary or foreseeable consequence of her availing herself of her right to enter and reside in India, there would be a real risk that she will suffer significant harm (s.36(4)).
The second Tribunal noted that the applicant made no claims regarding India in relation to her Christian faith. The Tribunal said:
45. There was nothing in the evidence before the Tribunal to suggest that persons from overseas coming to India are regarded as a particular social group.
…
46. Nepalese coming to India might be constituting a social group but the evidence does not suggest they are for that reason targeted and persecuted. …Taking the country information as a whole the Tribunal does not accept that the treatment of Nepalese in India is such that the mere factor being Nepalese in that country or a Nepalese coming to that country gives rise to a well-founded fear of persecution for a Convention reason or a real risk of significant harm.
Materially, the second Tribunal then identified the consideration that it had given to the matter and found:
47. The Tribunal has carefully considered whether having regard to the provisions of s.36(3), there is anything else in the applicant’s personal circumstances which would exclude her from the operation, in particular as a Christian or as a single woman.
The second Tribunal then identified that the independent information does not suggest Christians are persecuted in India:
50. The applicant expressed concern that as a woman in India she would be vulnerable to rape or enforced prostitution. As put to the applicant at hearing, this appears to be more of a problem for the rural and urban poor rather than middleclass people working in India’s large cities, while the incidents have to be considered in the context of the immensity of India’s population.
Materially, the second Tribunal found that it was not satisfied that the applicant had a well-founded fear of Convention-related persecution in India or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of her availing herself of her right to enter and reside in India, there would be a real risk that she would suffer significant harm. The second Tribunal said that the provisions of s.36(3) are therefore not excluded on this basis. These findings were clearly open on the material before the second Tribunal.
The second Tribunal then turned to consider whether the authorities in India might return the applicant to Nepal or to a third country. Relevantly, the second Tribunal noted that the applicant had not been convicted of any crime, there was no suggestion she had engaged in any criminal activity, and identified the advice from DFAT and independent information before the second Tribunal to suggest that the Indian authorities would not return a national to Nepal for any reason other than criminal activities. The second Tribunal concluded that it was not satisfied the applicant has a well-founded fear that India will return her to Nepal, her country of nationality, nor is there anything to suggest that the Indian authorities will send the applicant to a country other than Nepal, her country of nationality.
The second Tribunal found that it was not satisfied that the applicant had a well-founded fear that the Indian authorities would return her to Nepal or any other country and that it was, therefore, unnecessary to assess whether she would be the subject of a real chance of persecution or a real risk of significant harm in Nepal. This finding was clearly open to the second Tribunal.
There was a suggestion drawn to my attention by counsel for the first respondent that there might be a potential criticism that arises by reason of the absence of addressing the question identified in para.55 of the reasons of the second Tribunal of the risk of persecution, risk of significant harm in Nepal.
In my opinion, there is no jurisdictional error in the approach that has been adopted by the second Tribunal, having identified the considerations under s.36 subs.(2) and the third country protection provisions in 36 subs.(3). It was open to the second Tribunal on the material before it to address the considerations under s.36(3) and that the findings that it made in that regard were open on the material before it.
The second Tribunal then continued:
57. For the reasons set out above, the Tribunal is satisfied that the applicant has a right to enter and reside in India and that she is not subject to the qualifications in s.36(4), 36(5) or 36(5A) of the Act. She has not taken any steps to avail herself of her right to enter and reside in India.
In my opinion, that finding was open on the material before the second Tribunal and there has been no procedural denial of fairness in relation to the conduct of the review by the second Tribunal and no other jurisdictional error identified in coming to that finding. The second Tribunal summarised those findings in para.58 as follows.
58. The Tribunal finds that the applicant has a right to enter and reside in India and has not taken all possible steps to avail herself of that right.
59. The Tribunal also finds that applicant does not have a well-founded fear of being persecuted for a Convention reason in India and that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of availing herself of the right to enter and reside in India, there would be a real risk of her suffering significant harm in India. The Tribunal further finds that the applicant does not have a well-founded fear of being persecuted for a Convention reason. Nor does the applicant have a well-founded fear of being returned by India to a country where there are substantial grounds for believing that, as a necessary and foreseeable consequence of the availing herself of the right to enter and reside in India, there would be a real risk of her suffering significant harm.
The second Tribunal concluded that:
60. Accordingly, Australia does not have protection obligations in respect of the applicant.
The second Tribunal then said for those reasons the decision not to grant the applicant a Protection (Class XA) visa was affirmed. The second Tribunal made no jurisdictional error of the kind alleged in the above grounds. It was open to the second Tribunal to make the findings as to the ability of the applicant to enter and reside in India. It does not constitute any reviewable error that the applicant has not lived in India. Contrary to the second ground alleged above the second Tribunal clearly had regard and evaluated the applicant’s alleged subjective fear and it was open to the second Tribunal to make adverse findings as to the absence of a well-founded fear of persecution. There is no substance in the third ground, the second Tribunal clearly understood, conducted and reviewed the applicant’s case in accordance with the procedural requirements of the Act and the findings adverse to the applicant were open.
In my opinion, there is no error in this case of the kind that was addressed by Judge Manousaridis is in SZTQN v Minister for Immigration [2015] FCCA 188 to which attention was drawn by counsel for the first respondent, given the analysis of the statutory provisions by the second Tribunal as well as the findings made in this case. My attention was also drawn to the suggestion that there is a criticism from the Full Court in SZRTC v Minister for Immigration & Border Protection [2014] FCAFC 43 at paras. 24 to 26 in which it is identified that the correct approach is for the decision-maker to determine whether an applicant satisfies one or more of the criteria for a protection visa prescribed in 36(2) and then to address the gateway in relation to s.36(3).
I do not read what is said in that decision of SZRTC as suggesting that it was jurisdictional error for the Tribunal to proceed to proceed to deal with s.36(3) without determining the application of the criteria in s.36(2).
In the context of this case it was clearly open to the second Tribunal to address the application of s.36(3) in the circumstances where the second Tribunal having addressed the nature of the considerations identified in s.36(2) and where it was patent that the issue of the opportunity of the applicant to avail herself of the right to enter and reside in India under s.36(3) was clearly a matter that arose in the present case as a potential reason and ground upon which Australia would not have a protection obligation in respect of the noncitizen applicant.
In my opinion, there was no legal error in the approach of the second Tribunal in dealing with s.36(3) in the manner it did in this case. To the extent that there was any departure from the sequence identified, it is one of no consequence or materiality given the other findings made by the second Tribunal that were open to it. Further, in my opinion, any error by the second Tribunal in not making findings under s.36(2) before addressing s.36(3) is one which was an error within jurisdiction and accordingly not a jurisdictional error, Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 at[52-53]. If SZTQN is to the contrary, for the above reason it is in my opinion clearly wrong, and I would not follow the same.
Further, even if there was an error of law not within jurisdiction in the sequence of approach to s.36(3) it is of no materiality in this case because it is clear that the applicant, on the findings before the second Tribunal, squarely falls within s.36(3). This impacts on the discretion under s.477 and also given that Constitutional relief is a matter of discretion. In those circumstances, a failure to make findings under first, s36(2) by the second Tribunal has no material significance to the applicant in this case because of the adverse findings that were made under s.36 (3), which findings were clearly open and accordingly there would be no sufficient prospect of a favourable exercise of discretion to extend time under s.477 or for the grant of relief.
For these reasons, the application for an extension of time is dismissed.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate: KM
Date: 11 February 2015
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