SZTQO v MIBP
[2014] FCCA 2636
•30 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTQO v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2636 |
| Catchwords: MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal erred in its consideration of the meaning of a right to enter and reside in another country within s.36(3) of the Migration Act or otherwise in its consideration of the application of s.36 of the Act. |
| Legislation: Migration Act 1958 (Cth), s.36 |
| Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 1 Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU (2013) 215 FCR 35; [2013] FCAFC 91 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 SZJBD v Minister for Immigration and Citizenship and Another (2009) 179 FCR 109; [2009] FCAFC 106 V856/00A v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 408; [2001] FCA 1018 |
| Applicant: | SZTQO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3066 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing date: | 30 October 2014 |
| Delivered at: | Sydney |
| Delivered on: | 30 October 2014 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr M. Smith |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3066 of 2013
| SZTQO |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal dated 7 November 2013. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of Nepal, applied for protection in November 2012 shortly after his arrival in Australia. The application was refused and he sought review by the Tribunal. He attended a Tribunal hearing. The only evidence before the Court of what occurred in that hearing is the Tribunal’s account in its reasons for decision.
The Applicant made a number of claims about past events in Nepal. As summarised by the Tribunal, he claimed his life had been threatened because of his active involvement as a worker for and member of the Rastriya Prajatantra Party (the RPP) which was pro-monarchy and against the Maoists. He claimed that when he was a boy in about 2001 during the civil war the Maoists targeted his father (who was a policeman) demanding money, food and shelter. The Applicant claimed that when he was employed as an electrician in a hotel from 2009 he had to pay a Maoist aligned union 10 per cent of his income (because he did not join the union). He claimed he was approached to join the Maoist-affiliated Tamu Ethnic Group and that after he joined the RPP in 2009 and became active he began to receive frequent threatening phone calls from the Maoists to join them or else they would kill him.
The Applicant claimed that until 2012 he was successful in avoiding the Maoists and was not physically assaulted. However he claimed that in 2012, as a result of his involvement with the then King’s visit to Pokhara, he and a named friend were abducted by Maoists and physically and verbally abused and threatened. They escaped, but he claimed to believe that the Maoists would kill him and his friend if they found them. He also claimed that the Maoists could follow and kill him in India. He claimed it would not be safe for him to live in India because there were Maoists there, he did not speak the language and he could not live freely in India.
The Tribunal stated that it had had regard to material (including country information) referred to in the delegate’s decision and in submissions made by the Applicant and to information cited in “Attachment B” to its decision.
There are two attachments to the Tribunal decision. “Attachment A” sets out the relevant law, including in relation to third country protection (in particular the provisions in ss.36(3), (4), (5) and (5A) of the Migration Act 1958 (Cth) (the Act)).
Attachment B is headed “Country information”. It contains a discussion of information (to which I will return) in relation to entry and residency in India, the Nepalese in India and Nepalese Maoists and threats to Nepalese in India.
The Tribunal described aspects of what occurred at the Tribunal hearing. It referred to issues raised with the Applicant, his account of his past claims and the Tribunal’s concerns in that respect. It recorded that it put to the Applicant that he could go to India, that he would not need a lot of money or a passport and that there was an open border. He was said to have claimed that it was not safe in India, that Maoists were very active in India and that he did not know the language and could not live freely in India.
The Tribunal also recorded that it outlined the provisions of s.36(3) of the Act, including whether the Applicant would face a real chance of persecution or real risk of significant harm in India. The Tribunal referred to the fact it had consulted a range of sources referring to the rights of Nepalese in India, including employment, property purchase and access to education and health services, but had found no reports indicating that Nepalese in India were targeted for serious or significant harm. It acknowledged that some reports referred to practical difficulties faced by some Nepalese in India who may be vulnerable to the same labour rights violations and various forms of exploitation as poorer Indians. The Tribunal also recorded that it had found no information to suggest that Nepalese or Indian Maoists targeted Nepalese migrants in India or that Nepalese Maoists cooperated with Maoists in India to pursue, identify and target persons they had previously threatened in Nepal. Nor had it found any information indicating that Nepalese living in India were targeted by or in relation to Nepalese political parties or groups. The Tribunal acknowledged that Indian Maoists were active in rural areas, but stated that Maoist activities had very little impact in India’s cities. It expressed the view that in a country of over a billion people, any risk would be very remote in one of India’s major urban centres.
It appears from the context in which this discussion was recorded that these issues were raised with the Applicant at the hearing. He was said to have “responded” that in the same way he could enter India without a passport, so could the Maoists who could follow and kill him there. He claimed that he did not think it was “the proper place for him”. He was recorded as stating that he had heard that Nepalese people in India had been discriminated against and not given equal rights and that the Indian government could not take care of its own country and would not be able to give him any kind of security.
In its findings and reasons the Tribunal expressed concern about aspects of the Applicant’s evidence about his activity in the RPP. It referred back to the discussion of such issues at the hearing. It also observed that there were differences between the Applicant’s oral claims, his written claims and those of his friend. It also expressed concern about the similarity between the Applicant’s detailed recounting of events and that of a friend at his separate hearing. This was said to suggest “a degree of considered embellishment”. The Tribunal stated that it had therefore approached the Applicant’s evidence with caution.
In relation to the claim that the Applicant’s father was threatened when the Applicant was a boy, the Tribunal found that this had no significance for the Applicant now or in the reasonably foreseeable future even in changed circumstances many years later.
The Tribunal accepted that from 2009 the Applicant was a member of the pro-monarchist RPP and that he may have been pressed to change party allegiance by the Maoists or the Tamu Ethnic Group. However it did not accept that during this period the Applicant received any significant or serious threats to harm or kill him if he did not do so. It noted that he was not physically assaulted or harmed during this period. It did not accept he was in hiding or consistently evading such groups, as he was in regular employment at a hotel. It acknowledged that at the hearing the Applicant had stated he was stressed by these threats, but had regard to the fact that he had also stated that he did not take them all that seriously.
The Tribunal accepted that the Applicant was involved in membership activities, such as handing out leaflets and similar publicity, but not that he had any significant role in promotion or publicity of policy or major party organisational responsibilities. It had regard to the fact that, despite being pressed, he was unable to articulate specific policies or issues and noted that he had not been able to do so before the delegate. The Tribunal was not satisfied that the Applicant undertook work for the RPP as “a group leader”.
The Tribunal rejected the Applicant’s written claims that he and his friend had a key organising or supervisory role in relation to preparations for the ex-King’s visit to Pokhara in September 2012 or that he was responsible for assigning jobs to 1,200 party workers. It was however satisfied that, together with a lot of other party members or supporters, the Applicant had been involved in basic tasks such as publicity and assisting with the erection of welcoming arches.
The Tribunal stated it had carefully considered the Applicant’s “various evidence” in relation to his claimed abduction and kidnapping in 2012 (in his original statement, at the departmental interview and at hearing). It noted there was no mention of disruption or intimidation of party workers in press reports about the King’s visit as the Applicant had submitted. Although it expressed concerns about the way the Applicant’s evidence had emerged, the Tribunal stated that it was prepared to give him the benefit of the doubt and accept that the incident occurred. Thus, it accepted that while erecting a welcome arch for the King in the company of a small number of RPP members in September 2012, the Applicant and his friend were taken by Maoist members and threatened in relation to their pro-monarchist activity. While also expressing some scepticism about whether the Applicant had escaped (rather than being released with a warning), for the purposes of the decision the Tribunal proceeded on the basis that he did escape as he claimed.
Further, while the Tribunal did not accept that the Applicant had a political profile or level of political activity which, of itself, would cause Maoists to pursue him outside Pokhara, it accepted that if he again came to the attention of Maoists, whether in his home town or, less likely elsewhere in Nepal, he may run a risk of harm arising from his escape from the Maoists in 2012. Although the Tribunal was not satisfied this eventuality was likely, it accepted that it met the “low bar” for “real chance”. On this basis the Tribunal accepted that there was a real chance that the Applicant may face persecution in the reasonably foreseeable future on return to Nepal.
The Tribunal found that on the face of it this finding gave rise to protection obligations under s.36(2)(a) of the Act. However, having regard to the Applicant’s circumstances and information before it about the relationship between Nepal and India, the Tribunal considered whether the Applicant was excluded from Australia’s protection obligations by s.36(3) of the Act which it summarised.
The Tribunal referred to the relevant law as set out in Attachment A and to country information in Attachment B, both in relation to the rights of Nepalese nationals to enter and reside in India, and to the circumstances of Nepalese nationals in India. It stated that this information had been discussed with the Applicant at the hearing.
The Tribunal continued:
The Tribunal has had regard to the terms of the 1950 Treaty of Peace and Friendship between India and Nepal; the consequential administrative provisions as currently set out by the Bureau of Immigration, Ministry of Home Affairs, Government of India on its website; and a recent advice of Australia’s Department of Foreign Affairs and Trade in relation to the practical situation. The Tribunal is satisfied that, as a matter of practical reality the applicant as a Nepalese has a right to enter and reside in India.
The Tribunal stated that it had considered the application of ss.36(4), (5) and (5A) of the Act in light of the country information relating to Nepalese nationals in India set out in Attachment B and in the context of its findings about the Applicant’s claims.
It continued:
The Tribunal is satisfied that in India the applicant will not face a real chance of persecution or serious harm, or a real risk of significant harm. The Tribunal accepts that there may conceivably be exceptional circumstances in which some individuals are of such significance to their persecutors in Nepal, (including the Maoists), that these persecutors may seek to pursue them in India. The Tribunal is satisfied that this is not such a case. Having regard both to the country information and the applicant’s own circumstances, the Tribunal is satisfied that Maoists, including those who abducted and threatened the applicant in 2012, will not pursue, track and target the applicant in India.
The Tribunal was satisfied that there was nothing in the country information in relation to Nepalese nationals in India or in the Applicant’s own particular circumstances which excluded him from the provisions of s.36(3) of the Act.
The Tribunal then considered the complementary protection criterion. It referred to the relevant law in Attachment A and to the findings it had already made in relation to the Applicant’s experiences and claimed fear of harm.
It acknowledged that the Applicant had claimed that when he worked as an electrician at a hotel he had to make payments of 10 per cent of his income to the union, although he had not formulated any claim on that basis in relation to a real risk of significant harm. In any event, the Tribunal did not consider that this forced impost amounted to significant harm as envisaged in s.36(2)(a)(a) of the Act. It also observed that there was no claim or suggestion that the Applicant would, on return to Nepal, wish or be obliged to resume employment at the particular hotel or that it was the general situation in Nepal that hotel electricians were obliged to pay a significant portion of their earnings to a union.
The Tribunal found that the Applicant had not advanced any other separate claims to provide substantial reasons for believing he would face a real risk of significant harm on return to Nepal, other than risks faced by the population generally.
The Tribunal found that the Applicant did not meet the complementary protection criterion, but that in any event any protection obligations which did on the face of it arise out of complementary protection, would be affected by the same considerations it had set out in relation to third country protection. The Tribunal affirmed the delegate’s decision.
This Application
The Applicant sought review by application filed in this Court on 10 December 2013. There are three grounds in the application. The Applicant did not file written submissions but made oral submissions today.
The first ground in the application is headed “Purported Bias Decision and Legal Error”. It is as follows:
As per the Complementary Protection guidelines, decision-makers need to look at the circumstances of each case individually, including instances of past harm, or evidence of the types of treatment inflicted in particular situations, in order to determine whether such treatment would fulfil the intent requirement were it to occur in the future. My case was decided unfairly as the Tribunal speculated by saying it is not likely that I would face harm and such eventuality is not at all likely ((See paragraph 49, Page 9 of the Decision Record attached). However, the tribunal has also accepted that it meets the low bar for ‘real chance’. The tribunal also accepted that there is a real chance that I would face persecution in the reasonably foreseeable future on return to Nepal. (See Paragraph 50, Page 9 of the Decision Record). The tribunal also accepted that I meet protection obligations under s. 36(2)(a) of the Migration Act 1958. (See Paragraph 51, Page 9 of the Decision Record). My argument is, when an applicant meets protection obligations under s.36(2) he/she should be entitled to a Protection visa under the law. Although the Tribunal stated it was an independent body and NOT a branch of the Department of Immigration and Border Protection, it basically acted as a branch of the DIBP by copying the delegate’s decision instead of making a fresh decision to remit my matter for reconsideration.
I believe the tribunal has made a legal error by not making an independent assessment to which the tribunal has jurisdiction to exercise.
Insofar as there is a claim of purported bias or a failure to make an independent assessment, this appears to be based on a contention that the Tribunal “copied” the delegate’s decision. There is no substance in such a contention. The delegate considered first whether the Applicant had a legally enforceable right to enter and reside in India and concluded that he did not have a legally enforceable right based on country information to the effect that there were no legally enforceable provisions (although many thousands of people did travel freely between the two countries). On that basis the delegate found that s.36(3) of the Act did not apply to the Applicant. The delegate also found, however, that it was not satisfied that the Applicant had a real chance of being persecuted for a Convention reason in Nepal, that his claims were weak and unconvincing, that having regard to the adverse view taken as to the credibility of the Applicant, there was not a real risk he would be arbitrarily deprived of his life (as he claimed) if removed to Nepal and that there were not substantial grounds for believing that as a necessary and foreseeable consequence of being removed to Nepal there was a real risk he would suffer significant harm.
As set out above, the Tribunal took a rather different approach. While it expressed some concern about aspects of the Applicant’s evidence, ultimately it proceeded on the basis of giving him the benefit of the doubt, in particular in relation to the claimed incident of 2012. Thus, although, based on the Applicant’s evidence it did not accept that he had a significant role in the RPP, the Tribunal proceeded on the basis that he may run a risk of harm arising from his escape from the Maoists in 2012 which met the “low bar” for real chance of persecution in the reasonably foreseeable future on return to Nepal.
However, as set out above, the Tribunal found that s.36(3) was applicable to the Applicant on the basis that, as a matter of practical reality, he had a right to enter and reside in India. It considered the application of ss.36(4), (5) and (5A) but was not satisfied that these provisions excluded the operation of s.36(3) of the Act in this case.
In relation to complementary protection, the Tribunal referred to its earlier findings and also addressed the specific claim that appeared to raise those issues outside the Applicant’s general claims. It found that if any protection obligations did arise out of the complementary protection provisions, the provisions of s.36(3) would nonetheless be applicable.
In other words, the Applicant’s contention that the Tribunal copied the delegate’s decision (and in that sense acted as “a branch” of the Department) is simply not consistent with the approach taken by the Tribunal. It made a fresh decision, albeit that it affirmed the conclusion of the delegate.
It is well-established that it is a rare and exceptional case that either actual or apprehended bias will be established based solely on the Tribunal’s reasons for decision (see SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 and SZJBD v Minister for Immigration and Citizenship and Another (2009) 179 FCR 109; [2009] FCAFC 106 at [82]). This is not such a case, either on the basis contended for by the Applicant or otherwise.
Insofar as the Applicant contended that if an applicant came within s.36(2) he or she should be entitled to a protection visa, s.36(2) must be read subject to 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.
However the s.36(3) exclusion does not apply in relation to a country in relation to which the non-citizen has a well-founded fear of persecution or where the Minister has substantial grounds for believing the non-citizen would suffer significant harm in relation to that country (s.36(4) and also see ss.36(5) and (5A)).
In this case, while the Tribunal accepted that there was a real chance that the Applicant may suffer persecution on his return to Nepal that, of itself, did not compel or lead to the conclusion that the Applicant met the criteria for the grant of a protection visa because the Tribunal concluded that s.36(3) of the Act applied. In particular, it found that the Applicant had a right to enter and reside in India.
In this context Counsel for the Minister addressed, and I have considered, whether the Tribunal’s finding that the Applicant had a right to enter and reside in India was consistent with the approach taken in recent decisions of the Full Court of the Federal Court in relation to the construction of s.36(3) of the Act (see in particular Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU (2013) 215 FCR 35; [2013] FCAFC 91).
Relevantly, in SZRHU Buchanan J (with whom Tracey, Robertson and Griffiths JJ agreed) considered the proper construction of s.36(3) of the Act. In a lengthy judgment, his Honour rejected the proposition that the right to enter and reside in a country referred to in that subsection was limited to a legally enforceable right. Buchanan J expressed a preference for the approach taken by Allsop J, (as he then was) in V56/00A v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 408; [2001] FCA 1018 in which his Honour had stated (at [31]) that he saw no reason to restrict the meaning of the word “right” to a right in the strict sense of a legally enforceable right or to exclude the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of any particular enforcement which did not give rise to any particular duty upon the state in question.
In SZRHU Buchanan J discussed various authorities before concluding (at [89]) that s.36(3) of the Act did not refer to a legally enforceable right, but rather to what was described as a less strict but nevertheless real entitlement.
In SZRHU the Court concluded that the Tribunal had erred in finding that a Nepalese citizen had a right to enter and reside in India on the basis of advice concerning the meaning and operation of the 1951 Treaty in circumstances where the Treaty itself, while reflecting a mutual right of residence, did not appear to give rights of entry. Buchanan J was of the view (at [88]) that arrangements at the border between Nepal and India whereby entry from one country to another was permitted (generally upon satisfactory proof of identity) appeared to be the result of administrative arrangements rather than arising directly from the terms of the Treaty. His Honour indicated that if such administrative arrangements for entry did not satisfy the test in V856/00A, then the test in s.36(3) would not be satisfied. Relevantly, Buchanan J continued (at [88]) that the Tribunal should not only have had regard to the actual terms of the Treaty but should also have evaluated whether, in combination with the terms of the Treaty, the administrative arrangements for entry by Nepalese citizens at the Indian border or any other arrangements with respect to entry identified by it satisfied the test.
However when one turns to the present Tribunal decision it is apparent, reading the Tribunal decision fairly and as a whole, that not only did the Tribunal state that it relied on independent country information in Attachment B, but it also set out (in the context of describing what occurred in the hearing), its understanding of the independent country information in relation to the situation of Nepalese in India and in its findings and reasons in relation to third country protection stated (at [55]):
The Tribunal has had regard to the terms of the 1950 Treaty of Peace and Friendship between India and Nepal; the consequential administrative provisions as currently set out by the Bureau of Immigration, Ministry of Home Affairs, Government of India, on its website; and the recent advice of Australia’s Department of Foreign Affairs and Trade in relation to the practical situation. The Tribunal is satisfied that, as a matter of practical reality, the applicant as a Nepalese national has a right to enter and reside in India.
It is clear from this finding that (consistent with the approach suggested in SZRHU) the Tribunal considered whether as a matter of practical reality the Applicant as a Nepalese citizen had a right to enter and reside in India. In doing so it had regard to the information described in Attachment B which referred refers to the fact that a citizen of Nepal entering India either by land or air would not require a passport or visa but rather valid identity documents to establish identity as a Nepalese citizen and to advice from the Department of 18 September 2013 that a citizen of Nepal in possession of a valid Nepalese passport could be given entry to India. The Departmental advice also recorded that unlimited stay was granted to Nepalese nationals in India and that there were no restrictions on their ability to remain, reside or work in India, albeit that the Department did refer to exclusion of those against whom “a lookout” notice had been issued by the Nepalese Government and to the possibility of forcible removal or deportation in circumstances of crime.
Moreover the Tribunal went on to consider the exclusionary provisions in s.36 of the Act and in that context referred to the country information in relation to Nepalese nationals in India described in Attachment B as well as to its findings about the Applicant’s claims. Thus the Tribunal incorporated a reference to information in Attachment B in relation to the free border movement of Nepalese to India, the large numbers of Nepalese people working and owning property in India, the significant proportion of the population of India’s north-eastern states who were Nepalese and also about the rights of Nepalese in India, including in relation to employment, property purchase and access to education and health services.
The Tribunal also stated that it had found no reports indicating that Nepalese nationals in India were routinely targeted for serious or significant harm. It acknowledged that some reports referred to difficulties faced by some Nepalese in India, who may be vulnerable to the same labour rights’ violations and various forms of exploitation as impoverished Indians and that there was also evidence of some informal societal discrimination. However it also pointed out that a 2011 report indicated that Nepalese had established institutions and socio-cultural practices in India.
The Tribunal had regard to country information relevant to threats to Nepalese in India. It found an absence of information to suggest that Nepalese or Indian Maoists targeted Nepali migrants in India or that there was cooperation between Nepalese Maoists and those in India to pursue and target those previously threatened in India. The Tribunal acknowledged that there was evidence of an ongoing Maoist presence in central and eastern India, but found that it was concentrated in poor and rural areas, with little impact in India’s cities. It also referred to country information about a decline in violence perpetrated by Maoists in India and a decline in links between communist parties in India and Nepal.
The Tribunal referred to such country information in the context of its finding that the Applicant was not of such significance that persecutors in Nepal (including Maoists) may seek to pursue him and in finding that there was nothing in the country information in relation to Nepalese nationals in India or the Applicant’s own particular circumstances which excluded him from the provisions of s.36(3) of the Act.
The Tribunal’s approach to these provisions is not supportive of the Applicant’s claim of legal error or purported bias as contended for in ground one of the application.
In oral submissions the Applicant made claims about the situation in India and the risk to him in India. There is nothing in the material before the Court to suggest that the Tribunal failed to consider the claims made by the Applicant in that respect. Insofar as he takes issue with those factual findings or raises fresh matters before the Court, he seeks impermissible merits review.
Ground one in the application is not made out. Contrary to the Applicant’s contention, it has not been established that the Tribunal failed to make an independent assessment.
Ground two is as follows:
Protection in a third country including India under section 36(3) of the Migration Act.
The Tribunal did not consider the facts that Nepali people face discrimination and are not given state protection in India although it is true that no visas were required for a Nepali to enter India. There have been several cases in history where Refugee Review Tribunal, Federal Court of Australia, Federal Circuit Court of Australia, Federal Magistrates Court and Administrative Appeals Tribunal have accepted that India is not considered as a Safe Haven for a Nepali National. The Tribunal made a purported decision on speculation and not based on reality. The tribunal failed to explore in depth and make findings including past court and tribunal decisions where several cases have been decided saying India cannot be considered as a Safe Haven for a Nepali National. The tribunal did not conduct a thorough independent investigation of the facts and only copied the decision of the delegate of the Minister, thus the tribunal has made another legal error.
First, as discussed above, there is nothing to support the contention that the Tribunal copied the decision of the delegate.
A number of other issues appear to be raised by this ground. First, insofar as the Applicant contended that the Tribunal should have had regard to earlier Refugee Review Tribunal decisions, there is no evidence that the Applicant raised with the Tribunal such decisions, let alone decisions of the Federal Court, this Court or the Administrative Appeals Tribunal. In any event, the Tribunal has to make a decision in relation to the particular application before it. It is not bound by an approach taken in any earlier Tribunal decision.
As discussed above, there is nothing in the material before the court to suggest that the Tribunal fell into error by failing to apply the law (in particular the law in relation to the construction of s.36(3) as determined in SZRHU) or that it failed to understand the manner in which the various provisions in s.36 of the Act interact.
It has not been established that there was any obligation on the Tribunal to seek out additional material insofar as that was intended to be contended by the Applicant. It was not under an obligation to explore in depth and make findings about past Court and Tribunal decisions in the manner contended for by the Applicant.
Proceedings before the Tribunal are inquisitorial in nature. It is incumbent on an applicant to present whatever evidence the applicant considers necessary or appropriate to persuade the Tribunal that he or she meets the criteria for the grant of the visa sought (Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 1).
I note also that the Applicant’s claims about earlier decisions may refer to cases which took a more restrictive approach to the concept of a right to enter and reside in s.36(3). The Applicant did not address this claim in submissions, but in any event on the material before the Court any such claim is not such as to establish jurisdictional error on the part of the Tribunal. The Tribunal considered the case made by the Applicant in light of independent country information to which it referred and applied the approach to a “right to enter” taken in SZRHU.
Beyond this, the selection and weight to be given to items of independent country information is a matter for the Tribunal. The Tribunal referred to independent country information submitted by the Applicant in relation to the situation in Nepal. There is no claim (and nor is there anything in the Court Book to suggest) that the Applicant put contrary independent country information about the situation in India before the Tribunal. There is nothing to suggest that the Tribunal failed to have regard to more recent independent country information than that referred to in Attachment B to its decision.
Insofar as a specific issue about the situation of Nepalese people in India was raised in this ground, the Tribunal described the Applicant’s evidence in that respect at the Tribunal hearing. No issue is taken with the accuracy of the Tribunal’s account. It addressed the concerns raised by the Applicant at the hearing (which related to not being safe from Maoists, not knowing the language and not living freely in India). The Tribunal referred to a number of sources of information. It clearly understood that there were reports that suggested that some Nepalese nationals in India might face some informal societal discrimination. However the Tribunal ultimately concluded that the Applicant would not face harm that amounted to serious harm constituting persecution or significant harm in India.
Having regard to the Tribunal decision read fairly and as a whole and in light of the material in Attachment B, it has not been established that the Tribunal fell into error in the manner contended for in ground two in the application.
Ground three is a general contention of a lack of natural justice and procedural fairness. The Applicant reiterated that the decision was biased and unfair. As indicated, neither actual nor apprehended bias is established on the material before the Court.
Insofar as there is a contention of unfairness, it was open to the Tribunal, having accepted that there was a real chance of persecution, to proceed on the basis that s.36(3) operated such that the Applicant was excluded from Australia’s protection obligations. Beyond this, ground three is not particularised and no jurisdictional error is established.
As no jurisdictional error has been established on any of the bases contended for by the Applicant the application must be dismissed.
The Applicant has been unsuccessful and there is nothing in the circumstances of this case to warrant a departure from the normal principle that an unsuccessful Applicant should meet the costs of the First Respondent. The amount sought is appropriate and reasonable in light of the particular circumstances and nature of this case.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 14 November 2014
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