SZTMX v Minister for Immigration

[2016] FCCA 1280

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTMX v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1280

Catchwords:
MIGRATION – Judicial review of decision of Refugee Review Tribunal (Tribunal) – whether Tribunal made any jurisdictional error by considering whether s.36(3) of the Migration Act 1958 (Cth) (Act) applied without first determining whether the applicant had a well-founded fear of persecution in his country of nationality or that the applicant faced a real risk of substantial harm if he were to return to his country of nationality – whether Tribunal correctly construed and applied s.36(3) of the Act to the circumstances of the case – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 36(3), 36(4), 36(5), 36(5A)

Cases cited:
Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU (2013) 215 FCR 35
Minister for Immigration and Border Protection v SZUSU [2016] FCAFC 50
SZTOX v Minister for Immigration and Border Protection [2015] FCAFC 77
SZUDE v Minister for Immigration and Border Protection [2015] FCA 1202
V856/00A v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 408

Applicant: SZTMX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2373 of 2014

Judgment of: Judge Manousaridis

Hearing date: 28 April 2016

Delivered at: Sydney

Delivered on: 27 May 2016

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents:

Ms R Krishnan of

Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2373 of 2014

SZTMX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant applies for judicial review of a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (protection visa).

The applicant’s claims for protection

1. In a statement dated 16 October 2012 that formed part of his application for a protection visa,[1] the applicant, a citizen of Nepal, claimed he is a member of the pro-monarchy Panchayat Party, which later became the Rastriya Prajatantra Party (National Democratic Party) (RPP).

   [1] CB26-29

2. The applicant claimed he worked as a party worker in the RPP village level committee. He also claimed that he was a secondary school teacher and that, after the Maoists commenced their “People’s war”, armed Maoist cadres often came to the school in which he taught and attempted to persuade the teachers and students to join the Maoists. As a party worker in the RPP village level committee, the applicant’s job was to educate the people by distributing leaflets and pamphlets and expanding the party in his area by increasing the number of supporters. In 1997 the applicant became a member of the RPP.

3. The Maoists were “not letting people live a peaceful and happy life”. They spread terror throughout the country, killing innocent people. The Maoists “were forcing me to join them”, but the applicant disliked their policies and their activities. The RPP began to protest against the Maoists.

4. As the applicant was returning home one day, a “group of YCL cadres” followed and chased him. The applicant ran away but was hit by a rock that struck the back of his head. The applicant was able to outrun the group despite being injured and “bleeding badly”.

5. Teachers and youths of the RPP vowed not to give any donation or support to the Maoists. In response, the Maoists issued warnings and wrote letters stating whoever did not support their party would be persecuted and may be physically harmed. The RPP kept on protesting but the Maoists started attacking RPP party workers whenever they got a chance, resulting in many being killed or seriously injured. The applicant received a threatening letter stating he should quit the RPP and join the Maoists or face the consequences, and that if he disobeyed he would lose his life.

6. The applicant had no security in his village and “kept hiding for security to save [his] life”. The applicant left his wife and children and went to Kathmandu. The next day, a group of Maoists attacked the applicant’s village, captured his house and land and abducted several youths from his village. The applicant remained living in Kathmandu but the Maoists continued to go to the applicant’s home in his village asking the applicant’s sisters where they had hidden the applicant and demanding his sisters give them the applicant’s address.

7. The applicant remained hiding in Kathmandu but a group of YCL cadres found him and pushed him inside their vehicle. They blind-folded the applicant and took him to their offices. They beat the applicant until he fell unconscious. The applicant pleaded with them that he would give them party donations and never go against them again. The group demanded Rs.100,000 be paid within 7 days or they would kill him. The applicant was “released the next day, blind-folded back in the same spot from where they arrested me”. The applicant was seriously injured and went to the hospital to seek medical attention where he was told he had a fractured right arm.

8. The applicant returned to his rented room but could not go to work or sleep and was suffering “severe mental stress”. The applicant returned to his wife and children for a few days. The applicant’s wife took him to see a doctor who diagnosed the applicant as suffering from depression and prescribed him anti depression medication. As it was not safe for the applicant to remain living with his wife, he continued to hide, going from “places to places”. A friend of the applicant’s suggested the applicant travel to Australia and remain there until the situation in Nepal improved. The applicant’s friend helped him arrange a passport using someone else’s identity and the applicant arrived in Australia in August 2009.

Hearing before the Tribunal

1. The applicant had repeated his claims before the delegate, before a differently constituted Tribunal on 17 September 2013 (first Tribunal), and before the Tribunal on 21 July 2014. At the hearing before the Tribunal on 21 July 2014, the applicant provided the Tribunal with a copy of a letter written by a medical practitioner dated 17 July 2014 stating the applicant suffers from depression, a sleep disorder, and panic attacks. The Tribunal accepted the applicant suffers from depression but was satisfied the applicant’s depression did not materially affect his ability to provide evidence.[2] The Tribunal noted that diagnosed depression “does not of itself resolve the issue of whether an applicant meets the statutory requirements for a protection visa”.[3]

   [2] CB176, [35]

   [3] CB176, [35]

Tribunal’s decision

1. The Tribunal noted three concerns about the applicant’s claims based on his asserted fear of persecution and harm if he were to return to Nepal. First, in his written statement, and in the evidence he gave before the delegate, the applicant said he was a member of the RPP since 1997, yet, before the first Tribunal the applicant said the RPP was the breakaway RPP-N and, before the Tribunal, the applicant stated he had been with the “RPP-N since it was formed in 1997 under Kamal Thapa”. The Tribunal found the applicant had confused RPP-N with RPP and Kamal Thapa with Surya Bahadur Thapa. The Tribunal noted that while such confusion would be understandable to a general observer, it was less explicable in the case of someone who claims to have been a member since 1997.[4]  

   [4] CB178-179, [52]

2. Second, the Tribunal accepted the applicant, as a teacher, and as someone with at least some association with the RPP, is a person with some local profile and as such, found it plausible the applicant may have encountered targeting by the Maoists during the civil war up to 2005 and that the applicant may have experienced extortion attempts by local YCL cadres in Kathmandu.[5] The Tribunal, however, found it hard to understand that one individual, namely the applicant, “who had a pretty low-key involvement in the RPP (or RPP-N)” would remain of such significance to the Maoists that for 8 or more years after the end of the civil war the Maoists would still be looking for the applicant specifically to target and harm him.[6]

   [5] CB179, [53]

   [6] CB179, [53]

3. Third, there was the question of the applicant’s delay after he arrived in Australia in making any real enquiries and lodging an application for protection. The Tribunal noted the applicant had Nepalese friends in Australia, he read a Nepalese newspaper in Australia, and, therefore, must have been “aware of Nepalese applying for visas to stay as well as advertisements by migration agents”.[7]

   [7] CB179, [55]

4. The Tribunal also noted that the applicant’s broader concerns about political instability or general insecurity in Nepal did not appear to arise specifically for a Convention reason, and to the extent it may give rise to a real risk, that risk is faced by the population generally.[8]

   [8] CB179, [54]

5. The Tribunal, however, did not find it necessary to reach conclusions about whether Australia owed protection obligations to the applicant because of his claimed fear of persecution and harm if he were to return to Nepal. The Tribunal did not consider it necessary to determine that question because:

   a)the Tribunal found that, having regard to the terms of the Treaty of Peace and Friendship between India and Nepal 1950, and information from Australian and Indian authorities about the administrative arrangements concerning entry into India by Nepalese nationals, the applicant, “as a matter of practical reality”, had a right to enter and reside in India;[9]

   b)the Tribunal was not satisfied the applicant has a well-founded fear of Convention-related persecution if he were to enter India, or that there were substantial grounds for believing that, as a necessary or foreseeable consequence of the applicant availing himself of the right to enter and reside in India there would be a real risk he will suffer significant harm;[10]

   c)the Tribunal was not satisfied the applicant had a well-founded fear that India will return him to Nepal;[11] and

   d)the applicant has not taken any steps to avail himself of his right to enter and reside in India.[12]

   [9] CB181, [66]

   [10] CB183, [74]

   [11] CB183-184, [78]

   [12] CB184, [80]

6. In short, the Tribunal was satisfied s.36(3) of the Migration Act 1958 (Cth) (Act) applied, and that the qualifications to that subsection specified in s.36(4), s.36(5), and s.36(5A) of the Act did not apply.[13]

   [13] CB184, [80]

The hearing

1. The application states three grounds of application. At the hearing before me, however, the applicant, who is not legally represented, initially made submissions without reference to the three grounds of application. After he concluded this part of his submissions, at my invitation, the applicant made submissions in relation to each of the three grounds. There was a substantial overlap between this part of the applicant’s submissions, and the submissions the applicant made without reference to the grounds of application. In these reasons for decision, I will first consider each of the grounds the applicant states in his application, and the submissions the applicant made in relation to each ground, and I will then address the submissions the applicant made generally. I will also address the submissions made in an annexure the applicant filed with the Court on 26 November 2014.

First ground of application

1. The first ground of application is as follows.

   1. Irrelevant considerations on India.

   The Tribunal has made irrelevant reliance and considerations about India, of which I am not a citizen. I am a citizen of Nepal which is a separate country (not a part of India). I claim physical and psychological harm if I were to return to Nepal. I have given evidences; that I have greatly suffered and my life was in great danger in Nepal, which the Tribunal has accepted on both hearings (i.e. 17 September 2013 and 21 July 2014). However, the tribunal has failed to consider the realities such as my age, and my physical and mental conditions and has only relied on the treaty that was signed in 1950 between Nepal and India. The Tribunal has failed to make proper investigations to find out whether this treaty namely “Treaty of Peace and Friendship” is really implemented on real life OR is it only contained in papers in the present time. The Tribunal although accepting my claims has made a jurisdictional error by not considering my country of citizenship NEPAL as the only place where I can return, if I were to go back.

2. I interpret this ground as making two claims. The first is that the Tribunal erred to the extent it found Australia did not owe the applicant protection obligations because the applicant could enter and reside in India. The second is that the Tribunal did not consider, or properly consider, the submissions the applicant made about his entering and residing in India.

Did the Tribunal apply the correct construction of s.36(3)?

1. It was relevant for the Tribunal to consider whether the applicant had a right to enter and reside in India. The relevance arises from s.36(3) of the Act which provides:

   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. Subsection 36(3) is subject to a number of exceptions. It does not apply in relation to a country where the non-citizen has a well-founded fear of being persecuted for a Convention reason, or where the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in s.36(3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.[14] Nor does s.36(3) of the Act apply in relation to a country if the non-citizen has a well-founded fear the country will return the non-citizen to another country in which the non-citizen will be persecuted for a Convention reason,[15] or in which the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in s.36(3) of the Act, there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.

   [14] Act, s.36(4)

   [15] Act, s.36(5)

3. There are a number of principles concerning s.36(3) of the Act that are now well established. First, it is open to the Tribunal to consider whether s.36(3) applies without satisfying itself that the applicant has a well-founded fear of persecution in the applicant’s country of nationality, or that an applicant faces a substantial risk of significant harm if he or she is returned to his or her country of nationality. In SZUDE v Minister for Immigration and Border Protection, McKerracher J held that “it is no error at all to deal with s 36(3) (which is a deeming provision) on the hypothesis that s 36(2) would apply”.[16] In Minister for Immigration and Border Protection v SZUSU, the Full Federal Court noted there was “no dispute that it was open to the Tribunal to dispose of the applications in this way [that is, by finding that s.36(3) applied] without first determining whether any of the criteria in s 36(2) had been satisfied”.[17] Immediately after this passage, the Full Federal Court directed the reader’s attention to SZUDE without any comment, thus indicating approval of what McKerracher J said in that case about the propriety of the Tribunal applying s.36(3) of the Act without first determining whether the criteria in s.36(2) had been satisfied.

   [16] [2015] FCA 1202 at [57]

   [17] [2016] FCAFC 50 at [3] (Tracey, Flick and Katzmann JJ)

4. Second, the “right” referred to in s.36(3) of the Act does not mean only a legally enforceable right under domestic law; it also includes a “liberty, permission or privilege lawfully given”. This is the construction given to s.36(3) by Allsop J (as his Honour then was) in V856/00A v Minister for Immigration and Multicultural Affairs[18] which has subsequently been approved by the Full Federal Court on three occasions.[19] Thus, the “right” referred to in s.36(3) of the Act need not be one that is capable of being vindicated in the courts and under the domestic law of the receiving country.[20]

   [18] (2001) 114 FCR 408 at [31]

   [19] Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU (2013) 215 FCR 35; SZTOX v Minister for Immigration and Border Protection [2015] FCAFC 77 at [31]-[38] (Allsop CJ, Jagot and Griffiths JJ); Minister for Immigration and Border Protection v SZUSU [2016] FCAFC 50 at [12]

   [20] SZTOX v Minister for Immigration and Border Protection [2015] FCAFC 77 at [34] (Allsop CJ, Jagot and Griffiths JJ)

5. Third, that the Tribunal may have used the expression “as a matter of practical reality” in a given case does not necessarily mean that the Tribunal applied the now discredited doctrine of effective protection, and thus misunderstood the correct construction of s.36(3) of the Act. Whether or not the Tribunal has by use of that expression misapplied the correct construction of s.36(3) of the Act must be determined by reference to the Tribunal’s reasons as a whole.[21]

   [21] Minister for Immigration and Border Protection v SZUSU [2016] FCAFC 50 at [39]-[41] (Tracey, Flick and Katzmann JJ)

6. There can be no question that the Tribunal in the case before me understood and applied the correct construction of s.36(3) of the Act. The Tribunal’s reasoning and approach are indistinguishable from the Tribunal’s reasoning and approach the Full Federal Court considered in SZUSU. The Tribunal in the case before me referred[22] to the Full Federal Court’s construction of “right” in SZRHU; and, although the Tribunal used the expression “as a matter of practical reality” in concluding that the applicant had a right to enter and reside in India, that is no more than looseness in language.[23]

   [22] CB180, [59]

   [23] Minister for Immigration and Border Protection v SZUSU [2016] FCAFC 50 at [41] (Tracey, Flick and Katzmann JJ)

Did the Tribunal properly consider the applicant’s submissions?

1. I am satisfied the Tribunal properly considered whether s.36 applied to the applicant, and also considered the submissions the applicant made about the possibility of his having to enter and reside in India. First, the Tribunal identified country information which was reasonably capable of supporting the Tribunal’s finding that the applicant, as a national of Nepal, had the right within the meaning of s.36(3) of the Act to enter and reside in India.[24]

   [24] CB180-181, [62]-[66]

2. Second, the Tribunal considered whether the applicant would have a well-founded fear of persecution for a Convention reason if he were to enter and reside in India. The Tribunal referred to the applicant’s submission that, while he would be entitled to enter India, he would face difficulties because of high unemployment, and be at risk because of the high crime rate, communal clashes, and Maoist insurgency.[25] The Tribunal found that, although there is evidence of some historical linkages between Nepalese and Indian Maoist groups, and there was an ongoing Maoist presence in central and eastern India,[26] the Tribunal found no information that indicated Nepalese or Indian Maoists target Nepalese migrants in India, or that Nepalese Maoists cross the border into India to pursue, identify, or target persons they had previously targeted in Nepal.[27] The Tribunal concluded it was not satisfied the applicant had a well-founded fear of persecution because of his political opinion if he entered and resided in India, or that there was a real risk that he will suffer significant harm if he were to enter and reside in India.[28]

   [25] CB182, [68]

   [26] CB182, [69]

   [27] CB182, [70]

   [28] CB182, [71]

1. Third, the Tribunal noted there was some evidence of discrimination and hardship faced by Nepalese in India. The Tribunal also noted, however, that it found no reports that Nepalese in India are the subject of routine or extensive mistreatment or harm. Further, the Tribunal was not satisfied that high unemployment or crime rates affecting the population of India generally of itself amounts to serious or significant harm.[29]

   [29] CB182-183, [72]

2. Fourth, the Tribunal considered whether the applicant had a well-founded fear that the Indian government would return the applicant to Nepal or some other country. The Tribunal referred to country information that indicated Indian authorities removed Nepalese from India. The country information to which the Tribunal referred, however, indicated that the Indian authorities only deport Nepalese who have been convicted of criminal offences, and that Nepalese police can request the Indian police to arrest a Nepalese who has committed a crime in Nepal and travels to India.[30] The Tribunal noted there was no other independent information to suggest the Indian government could or would return a national of Nepal to Nepal for any other reason. The Tribunal was not satisfied, therefore, the applicant had a well-founded fear the Indian government would return him to Nepal or to some other country.

   [30] CB183, [76]

3. The Tribunal was, therefore, satisfied the applicant had a right to enter Nepal, that he was not subject to the qualifications referred to in s.36(4), s.36(5), and s.36(5A) of the Act, and that he had not taken any steps to avail himself of his right to enter and reside in India.[31]

   [31] CB184, [80]

4. In my opinion, from the face of the Tribunal’s reasons for decision, I am satisfied the Tribunal understood and considered the applicant’s claims and submissions, and considered each of the matters it was required to consider under s.36(3), s.36(4), s.36(5), and s.36(5A) of the Act.

Applicant’s submissions

1. The applicant submitted India has a very large population, he does not have money, India and Nepal are different countries, India dominates Nepalese people, and that the applicant cannot take his family with him to India. These submissions seek merits review of the Tribunal’s conclusions that the applicant had the right to enter and reside in India, and the applicant did not have a well-founded fear that he would be persecuted or face significant harm in India, or that India would return the applicant to Nepal or to some other country.

2. Ground 1, therefore, is not made out.

Ground 2

1. The second ground contained in the application is:

   2. Arbitrary Decision by the Tribunal

   My family (including my wife and young children) always have lived in Nepal. The Tribunal has made an arbitrary decision by wanting to send me to India although it has accepted that my life will be in real danger in Nepal. By considering to sending me to India; the Tribunal has failed to consider the importance of my union with my family. My family which includes young children will not be able to live in India; similarly I cannot survive in India due to my age, physical and medical conditions. Hence the decision of the Tribunal is arbitrary and inconsiderate in terms of family value.

2. This ground contains two complaints. One is that the Tribunal failed to consider the importance of the applicant’s union with his family. The Tribunal’s reasons for decision do not record the applicant having made any submission that if he were to enter and reside in India he would be required to do so without his family. The Tribunal’s reasons only record that the applicant said that India was not safe,[32] and that he would face difficulties because of high unemployment, and be at risk there because of a high crime rate, communal clashes, and Maoist insurgency.[33] In the absence of evidence that the applicant also submitted he would be required to enter India without his family, I am not prepared to find that the applicant made such submission to the Tribunal, and that the Tribunal failed to consider it. In any event, even if the applicant had raised it, I am not satisfied it would have been relevant to the correct application of s.36(3) of the Act. This part of ground 2, therefore, raises no jurisdictional error.

   [32] CB178, [50]

   [33] CB182, [68]

3. Secondly, the applicant claims the Tribunal’s decision was arbitrary. This submission appears in part to be based on the claim that the Tribunal did not consider the applicant’s entering and residing in India without his family. It also relies on assertions that he cannot survive in India due to his “age, physical and medical conditions”. There is nothing in the Tribunal’s reasons that suggests the applicant claimed he could not survive in India because of his age, physical or mental conditions. I am not prepared to find, therefore, that the applicant made any such submission to the Tribunal, although, as I will show below, the Tribunal did in fact take into account the applicant’s mental condition. In any event, I am not satisfied that the applicant’s medical or mental condition was relevant to the correct application of s.36(3) of the Act. This part of ground 2, therefore, also raises no jurisdictional error.

4. At the hearing before me, the applicant submitted he was not satisfied with the Tribunal’s decision because if he goes to India he will not have a job or property and he, therefore, cannot survive in India. He said he will be unable to take his family, and, because of his health issues, he will not be able to survive in India. These submissions repeat the substance of the submission contained in ground 2, and for the reasons I have already given, raises no jurisdictional error.

5. Ground 2, therefore, also fails.

Ground 3

1. The third ground of application is as follows

   3. Inconsideration of facts

   The Tribunal failed to consider my medical condition. I now have got the privilege of Medicare in Australia and I have greatly benefitted from it. Although I have submitted letters from Doctors and licenced medical practitioners in Australia which clearly state my medical conditions, the Tribunal has failed to consider them while making such an apprehended bias decision. The role of the Tribunal is to seek evidences, investigate the realities and to make a fair decision. The Tribunal has not done any of these before making its decision. The Tribunal hence has made a jurisdictional error by not doing its job properly and by attempting to strip off my Medicare from me. It is a fact that I cannot survive without medical attention and stripping off the Medicare means not letting me to live [sic].

2. The Tribunal did not ignore the applicant’s medical condition. It referred to the applicant’s medical condition in two contexts. The first was in the context of the applicant’s ability to give evidence and participate in the hearing. As I have already noted, the Tribunal accepted the applicant suffers from depression but was satisfied the applicant’s depression did not materially affect his ability to provide evidence.[34] The second context in which the Tribunal considered the applicant’s medical condition related to the application of s.36(3) of the Act. The Tribunal recorded it had considered all the applicant’s personal circumstances “including his depression” which would exclude the operation of s.36(3).[35]

   [34] CB176, [35]

   [35] CB183, [73]

3. Although the Tribunal referred to the applicant’s having submitted the letter dated 17 July 2014, and that the letter stated the applicant suffered from depression, that he has a sleep disorder, and that the applicant gets panic attacks, the Tribunal did not make any finding about whether those conditions, other than depression, affected the applicant’s ability to provide evidence. Given, however, the Tribunal referred to the applicant’s sleep disorder and proneness to panic attack, I am not satisfied the Tribunal did not consider those two medical conditions. In any event, whether or not the Tribunal considered those medical conditions cannot matter. The Tribunal considered whether the applicant’s ability to provide evidence was affected by his depression. The Tribunal’s finding that the applicant’s depression did not affect his ability to give evidence implies that the Tribunal was satisfied that the applicant was not affected from giving evidence by any other condition. 

4. Ground 3, however, additionally claims that the Tribunal’s decision would have the effect of denying the applicant the medical benefits he receives in Australia. That is a significant disadvantage that will befall the applicant if he cannot stay in Australia. Unfortunately, that is not a matter that was relevant to the questions the Tribunal was required to consider. The applicant’s oral submissions repeated the substance of this part of ground 3.

5. In my opinion, ground 3 is not made out to the extent it claims the Tribunal did not consider the applicant’s medical conditions. Ground 3 also does not disclose any jurisdictional error to the extent it is based on the claim that the effect of the Tribunal’s decision will be that the applicant cannot stay in Australia and thus be able to access Australia’s health system.

Other submissions – affidavit of 26 November 2014

1. The applicant filed an affidavit on 26 November 2014 to which he annexed a document titled “TO WHOM IT MAY CONCERN” containing submissions, a transcript of that part of the hearing before the Tribunal in which the applicant was questioned by the Tribunal member about the applicant’s membership of the RPP-N, and an article from Wikipedia titled “Rastriya Prajatantra Party Nepal” (RPP-N). The Minister, in his written submission, refers to this affidavit, and makes submissions. The applicant, however, did not read the affidavit and, in response to my questions about documents that he had filed, did not refer to it. I was not aware of the affidavit, even though it was in the Court file. I assume the applicant did not read the affidavit through inadvertence. Given the Minister has made submissions about the affidavit, I propose to consider it.

2. The document titled “TO WHOM IT MAY CONCERN” deals with the Tribunal’s finding that the RPP-N was formed in 2006. The applicant submits that the RRP-N was formed in 1990, and relies on an article from Wikipedia. The applicant submits, therefore, that the Tribunal “has not done its job properly and thus has committed a jurisdictional error”. There are a number of matters to note.

3. First, the Wikipedia article on which the applicant relies itself appears to confuse the RPP with the RPP-N.  The title of the Wikipedia entry is “Rastriya Prajatantra Party Nepal”. It states that RPP-N is a splinter group of the RPP. It then says that “Rastriya Prajatantra Party” - not the Rastriya Prajatantra Party-Nepal – was established on 29 May 1990. It further states that “the party” was registered “with the Election Commission of Nepal ahead of the April 2008 Constituent Assembly election”. That suggests that the RRP-N was formed nearer to 2006 – as the Tribunal found - than to 1990. On the other hand, the Wikipedia article, in a column of summary facts headed “Rastriya Prajatantra Party Nepal” states the party was founded on 29 May 1990. Thus, on its face, the Wikipedia article cannot reasonably be relied on to conclude that the RPP-N was formed in 1990.

4. Second, the Tribunal relied on a publication titled “Political Handbook of the World 2012” for finding that the RPP-N was established in January 2006.[36] There is nothing to suggest the Tribunal was not reasonably entitled to rely on that publication. That is particularly so when the applicant does not appear to have put to the Tribunal the Wikipedia article on which the applicant relies.

   [36] CB179, [52]

5. Third, even if the Tribunal made an error, as the applicant asserts, that does not necessarily mean the Tribunal made a jurisdictional error. Whether or not the RPP-N was formed in 2006, as the Tribunal found, or in 1990, as the applicant now claims, was a matter well within the Tribunal’s jurisdiction to decide.

6. Finally, whether or not the Tribunal was correct about when the RPP-N was formed, the Tribunal’s finding in that regard had no bearing on the decision it made. The Tribunal did not decide to reject the applicant’s claims based on the applicant’s fear of persecution and harm if he were to be returned to Nepal. The Tribunal, in effect, assumed the applicant had such well-founded fear. The Tribunal affirmed the delegate’s decision on the basis of its application of s.36(3) of the Act.

Other submissions

1. As I have already noted, at the beginning of the hearing before me the applicant made a number of submissions without specifically referring to the grounds of application. To a large extent, what the applicant submitted overlapped with the submissions he later made in relation to each of the grounds. Thus, the applicant submitted it would be hard for the applicant to live in India; India dominates Nepal, and India harasses Nepalese people; the applicant will be unable to take his family to India. None of those matters raise any jurisdictional error by the Tribunal.

2. The applicant also submitted the Tribunal approached his application for review half-heartedly. I do not accept that submission, although I can understand why the applicant might make this submission. The Tribunal did not determine whether the applicant had a well-founded fear of persecution, or whether he faced a real risk of suffering significant harm if he were to return to Nepal, and it did not do so because it was of the view that s.36(3) of the Act applied. For reasons I have already given, the Tribunal was entitled to determine the applicant’s case for review in that manner, and it made no jurisdictional error in the manner in which it applied s.36(3) of the Act to the circumstances of the applicant’s case for review.

3. The applicant also appealed to my sense of humanity and justice in considering his case. Although humanity and justice should accompany the manner in which this Court exercises its jurisdiction under s.476 of the Act, humanity and justice by themselves do not define the jurisdiction of the Court under that section. The Court’s jurisdiction is to determine whether the decision under review – in this case, the decision of the Tribunal – was made as a result of a jurisdictional error, having regard to the grounds stated in the application that is before the Court. For reasons I have already given, the Tribunal in this case made no jurisdictional error.

Disposition

1. I propose to order that the application be dismissed. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  27 May 2016