SZUDE v Minister for Immigration & Anor
[2015] FCCA 60
•20 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUDE v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 60 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution by Maoists in Nepal – Tribunal making no finding on the applicant’s claims on the basis that he could enter and reside in India – whether it is a jurisdictional error to apply ss.36(3)-(5A) of the Migration Act 1958 (Cth) without making a finding for the purposes of s.36(2) considered. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 91R |
| Abebe v Commonwealth of Australia (1991) 197 CLR 510 NBGM v Minister for Immigration (2006) 150 FCR 522 NBLB v Minister for Immigration [2005] FCA 1051 | ||
| Applicant: | SZUDE | |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 833 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 18 November 2014 |
| Date of Last Submission: | 6 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 20 March 2015 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms F Taah of Australian Government Solicitor |
ORDERS
The application filed on 27 March 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 833 of 2014
| SZUDE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 27 February 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The following statement of background facts is derived from the original submissions of the Minister filed on 10 November 2014.
The applicant is a citizen of Nepal who arrived in Australia on a temporary business visa on 8 March 2013[1]. On 2 April 2013, he applied to the Minister’s Department for a protection visa[2]. On 24 September 2013, a delegate of the Minister refused the application for a protection visa on the basis that the applicant had a right to enter and reside in India[3]. On 21 October 2013, the applicant applied to the Tribunal for review of the delegate’s decision[4] and on 25 February 2014, the applicant attended a Tribunal hearing accompanied by his migration agent[5].
[1] Relevant Documents (RD) 54; 70
[2] RD 1-39
[3] RD 54-62
[4] RD 64-69
[5] RD 85-87
The applicant’s claims for protection, the majority of which were contained in a written statement of claims[6], can be summarised as follows:
a)as a monarchist and a member of the Rastriya Prajatantra Party (the RPP) in Nepal, he was targeted by the Maoists by extorting money from him. The applicant’s brother, also a monarchist and an RPP member, was killed by the Maoists in September 2005. The applicant became a member of the RPP in January 2008;
b)he could no longer afford to pay the money demanded by the Maoists to allow the continued operation of his business he had established. He was forced to close the business in February 2008;
c)in May 2009, he travelled to Kathmandu and became a “shareholder” in a travel/holiday business but the extortion by the Maoists continued. He paid them approximately Rs. 3,40,000 from mid-2010 to September 2012;
d)on 7 December 2012, the Maoists demanded Rs.15,50,000. On 15 December 2012, he was detained by the Maoists for two days who threatened to kill him if he refused to pay;
e)the applicant reported the matter to the police upon his release however they did nothing to assist him. He then made arrangements to leave Nepal;
f)in Nepal, he was an active member of the RPP and had taken part in protests and campaigns.
[6] RD 38-39
After lodging the application, the applicant submitted to the Minister’s Department several documents including translations of a membership card for the RPP[7], two death certificates[8], a share certificate for the business in Kathmandu[9], a letter stating that on 15 December 2012 the applicant was “kidnapped by a group of three unidentified masked armed persons”[10], and an extract of a newspaper report regarding the alleged kidnapping published on 16 December 2012[11].
[7] RD 42
[8] RD 44-45
[9] RD 46
[10] RD 48
[11] RD 43
At the Tribunal hearing, the Tribunal explored with the applicant his ability to enter and reside in India, explaining that if it found that he had a right to enter and reside in India, he would not be offered protection in Australia[12]. After the Tribunal hearing, the Tribunal received written submissions from the applicant’s migration agent, dealing with issues including the situation for people holding an anti-Maoist political opinion in Nepal, why India is not a safe third country, recent judgments on the right to enter and reside, and the general issues of the real chance test, state protection, credibility and complementary protection[13].
[12] RD 148-153 being summary of the Tribunal hearing held on 25 February 2014
[13] RD 89-124
Tribunal decision
On 27 February 2014, the Tribunal affirmed the decision not to grant the applicant a protection visa.
The Tribunal accepted that the applicant was a Nepalese citizen[14]. Noting the relevant legislative provisions and case law with respect to third country protection, namely ss.36(3), (5) and (5A) of the Migration Act 1958 (Cth) (Migration Act), the Tribunal found that it was unnecessary to consider the applicant’s claims to fear harm in Nepal due to the availability of India as a safe third country[15].
[14] RD 131 [20]
[15] RD 134 [33]
The Tribunal referred to the existence of the Treaty of Peace and Friendship between India and Nepal 1950 (Treaty), noting, relevantly, that article 7 of the Treaty grants residence, ownership of property and other rights to nationals of Nepal once they are in India, and vice versa[16]. The Tribunal then referred to information provided by the Australian Department of Foreign Affairs and Trade (DFAT) to the effect that Nepalese citizens can travel by land or air to India without a passport or a visa for entry into India, provided they can show a valid identity document including a Nepalese passport - a document which the applicant possessed[17].
[16] RD 134 [37]
[17] RD 135 [39]
The Tribunal was satisfied on the basis of the Treaty and country information regarding the administrative arrangements between India and Nepal that the applicant would in fact, have a right to enter and reside in India[18], such that s.36(3) of the Migration Act would be enlivened, provided the exceptions at ss.36(4), (5) and (5A) of the Migration Act did not apply. The Tribunal then proceeded to consider those exceptions.
[18] RD 136 [43]
The Tribunal was not satisfied that s.36(4) applied to the applicant, that is, that the applicant had a well-founded fear of Convention related persecution, or that there were substantial grounds for believing that as a necessary and foreseeable consequence of availing himself of his right to enter and reside in India, there would be a real risk that he would suffer significant harm[19]. In particular, the Tribunal considered the applicant’s claim that he would be targeted in India by the Maoists because he is on their “most wanted list” and they would track him down in India [20], and that he did not want to go to India because the Indian government did not help Nepalese citizens[21]. The Tribunal did not accept that the applicant would be pursued by Maoists in India, noting that it had difficulty accepting that he was kidnapped and threatened by them whilst he was in Nepal[22]. Although the Tribunal noted that there was some evidence of hardship and discrimination against Nepalese migrants in India, it found no reports indicating that Nepalese in India are routinely and extensively mistreated or harmed[23]. Further, whilst the Tribunal observed the existence of country information regarding the presence of Maoists in India and a link between Nepalese and Indian Maoists groups, it found no information indicating that Nepalese migrants in India are currently or recently targeted due to their association with Nepalese political groups[24]. The Tribunal was satisfied, on the basis of country information, that any risk to the applicant from Maoists groups in Nepal was far-fetched, remote and insubstantial, and that there was not a real chance that he would face Convention related persecution[25], or that he would face a real risk of significant harm in India[26].
[19] RD 136-139 [44]-[59]
[20] RD 136 [47]
[21] RD 137 [48]
[22] RD 137 [53]
[23] RD 137 [50]
[24] RD 138 [55]-[56]
[25] RD 138 [57]
[26] RD 139 [58]
The Tribunal then considered whether the Indian government might return the applicant back to Nepal or to another country where he would face Convention related persecution or would face a real risk of significant harm, noting that country information from DFAT indicated that the Indian government would only return a person to Nepal if they have been involved in criminal activity[27]. The applicant was not such a person, nor did the Tribunal consider that he would engage in criminal activity in the future. The Tribunal was therefore not satisfied that the applicant had a well-founded fear that the Indian government would return him to Nepal[28]. Given this finding, the Tribunal found it unnecessary to assess whether the applicant would face Convention related persecution or a real risk of significant harm in Nepal[29].
[27] RD 139 [61]-[62].
[28] RD 139 [63]
[29] RD 139 [64]
The Tribunal concluded that none of the exceptions at ss.36(4), (5) and (5A) of the Migration Act applied to the applicant, and further found that the applicant had in fact not taken any steps to avail himself of his right to enter and reside in India[30], with the Tribunal recording earlier at [40] of its decision that the applicant had admitted that he had not taken any such steps.
[30] RD 140 [65]
Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa.
The present application
These proceedings began with a show cause application filed on 27 March 2014. There are two grounds in that application:
1. The Refugee Review Tribunal Member made an error of law on the issue of relocation to India by ignoring my safety concern.
2. I am a victim of the Tribunal Member’s impulsive decision because it is not legally fair.
The matter came before me for a hearing pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) (Rules) on 18 November 2014. At that time I was satisfied that the grounds in the application did not raise an arguable case for the relief sought. However, I nevertheless ordered the Minister to show cause, pursuant to rule 44.12(1)(b) of the Rules, why relief should not be granted in relation to the issue identified at [36] of my judgment in SZTPK v Minister for Immigration & Anor[31] by reference to [33] of the Tribunal’s reasons[32].
[31] [2014] FCCA 2259
[32] RD 134. My decision in that case was under appeal in the Federal Court but the appeal was discontinued on 17 March 2015
I gave the parties the opportunity to file post trial submissions on that issue, which they did.
I have before me as evidence the book of relevant documents filed on 14 May 2014.
Consideration
My reasons for deciding at the show cause hearing that the grounds in the application were not arguable are as follows.
Ground 1
This ground raises no arguable case for the relief the applicant claims. Whilst the applicant uses the term “relocation”, it is apparent that the allegation made relates to the Tribunal’s conclusion that the applicant had a right to enter and reside in India, rather than being a reference to relocation in the context of s.36(2B)(a) of the Migration Act, given that the Tribunal found it unnecessary to consider the applicant’s protection claims.
The allegation that the Tribunal ignored the applicant’s safety concerns about residing in India fails at the factual level in light of [44]-[59] of the Tribunal’s decision record where it expressly considered the applicant’s concerns. It is correct that the Tribunal did not address the applicant’s safety concerns about living in Nepal and that issue arises as the additional issue. The Tribunal’s findings that the applicant has a right to enter and reside in India and that he had not taken all possible steps to avail himself of that right, were (if ss.36(3)-(5A) were enlivened) open to the Tribunal on the material before it, being the applicant’s own evidence and independent country information. This complaint is an invitation for this Court to engage in impermissible merits review[33].
[33] Abebe v Commonwealth of Australia (1991) 197 CLR 510 at 53-54; Minister for Immigration v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ
Ground 2
The allegation that the Tribunal’s decision was made impulsively is also not arguable given the level of detail in the Tribunal’s decision. The Tribunal’s decision record indicates that it carefully dealt with the applicant’s claims and there is nothing in the decision, nor is there any evidence before this Court, suggesting that the Tribunal made its decision hastily or impulsively.
The secondary allegation of procedural unfairness by the Tribunal is also without merit given the Tribunal’s summary of the hearing[34] where it is clear that the applicant understood and responded to the issue raised by the Tribunal, being his right to enter and reside in India. There is nothing in the Tribunal’s decision record suggesting that the applicant was denied procedural fairness in the conduct of its review.
[34] RD 148-143
The additional issue
The additional issue is whether the Tribunal erred in failing to make a finding on the applicant’s protection claims on the basis of third country protection. At [33] the Tribunal said[35]:
Overall, there are some issues which raise doubts about the credibility of the applicant’s claims about the demands for money and about the provenance of the documents he provided in support of his claims. However, for reasons concerning the availability to the applicant of safe third country protection I have not found it necessary to reach conclusions as to whether Australia has protection obligations towards the applicant under the ‘refugee’ criterion or on other ‘complementary protection’ grounds based upon his claimed fear of returning to Nepal.
[35] RD 134
In SZTPK, I relevantly said the following at [35]-[36]:
Sub-section 36(3) deems a person not to be entitled to Australia’s protection obligations, which would otherwise be owed, if the person has not taken the steps set out in that provision. One does not get to s 36(3), however, unless the requirements in s 36(2) are satisfied.
… [A]s was made clear by the Full Federal Court in SZRTC … the Tribunal followed the correct approach of considering first whether the applicant satisfied one or more of the criteria for a protection visa in s 36(2). It was only because that question was answered in the affirmative that it was necessary for the Tribunal then to turn to s 36(3) and determine whether or not the applicant was a person to whom that subsection applied. This means, in my view, that the ‘protection obligations’ which Australia is taken not to have by reference to s 36(3) are not hypothetical but, rather, are protection obligations that have been established.
In SZRTC v Minister for Immigration[36], Tracey and Griffiths JJ, having noted at [24] that s.36(3) “operates as a qualification on sub-section (2)”, then said[37]:
The correct approach is, therefore, for the decision-maker to determine whether an applicant satisfies one or more of the criteria for a protection visa prescribed by s 36(2). If the answer to that question is in the affirmative it is necessary for the decision-maker then to turn to s 36(3) and determine whether or not the applicant is a person to whom that sub-section applies. If it does not, the ‘gateway’, created by s 36(2) to the granting of a visa remains open and there is no occasion to consider whether one or more of the qualifications to s 36(3) applies. If s 36(3) is found to apply, the decision-maker must then determine whether one or more of the qualifications contained in sub-sections (4), (5) and (5A), which ensure that Australia’s international obligations under the Refugees Convention are met, limit the operation of s 36(3) and keep the ‘gateway’ open.
[36] (2014) 141 ALD 264
[37] at [25]
In the present case, the Tribunal did not follow the steps set out in SZTRC. At [33], the Tribunal said that, because it found that the applicant had not taken all possible steps to avail himself of a right (as understood in s.36(3) of the Migration Act to enter and reside in India[38], it was unnecessary to reach a conclusion as to whether or not he satisfied the criteria in ss.36(2)(a) and/or (aa). The Tribunal went on to consider whether:
a)the applicant had a well-founded fear of persecution and/or was entitled to complementary protection, as required by s.36(4), and concluded that he did not[39]; and
b)India would return him to Nepal or another country where he would be subjected to persecution or significant harm, as required by ss.36(5) and (5A), and concluded that he would not be so returned[40].
[38] see [43]
[39] at [44]-[59]
[40] at [60]-[64]
In the light of these findings, the Tribunal concluded, at [65]-[67], that the exception in s.36(3) to the criterion in s.36(2) applied with respect to the applicant, and was not negated by the operation of any of ss.36(4), (5) or (5A).
The Minister’s position
The Minister submits that the Tribunal’s approach in considering the matters raised by s.36(3) without first making findings as to whether the criteria in ss.36(2)(a) and/or (aa) were met does not amount to jurisdictional error.
The authorities
In NBLC v Minister for Immigration[41], Wilcox J said, at 153 [5], that s.36(3) is a provision “that is concerned with people who have already satisfied Art 1A(2), as notionally amended by s.91R”. While the Minister concedes that on one view his Honour may be thought to be saying that a decision-maker must actually have made a finding in relation to the criteria in s.36(2), the Minister submits that it is equally plausible that his Honour may have considered that the Tribunal could address s.36(3) on the assumption that s.36(2) had been satisfied.
[41] (2005) 149 FCR 151
Justice Graham, on the other hand, having observed that s.36(2) is “significantly qualified” by s.36(3)[42], said[43]:
Whether Australia has protection obligations to any particular non-citizen will depend firstly upon whether that non-citizen comes within the reach of s 36(3) of the Act and, if not, whether Australia has protection obligations to that non-citizen under the Convention as modified in its application to Australia by s 91R of the Act.
[42] at 158 [47]
[43] at 159 [48]
Justice Bennett appeared to strike a middle ground between these two positions. At 155 [17], her Honour said that s.36(3) “is a qualification of s.36(2)”. These words had been used by Emmett J at first instance in the same case, NBLB v Minister for Immigration[44], where his Honour said[45]:
Sections 36(3), 36(4) and 36(5) have no independent effect or operation. They operate only as qualifications of s 36(2). That is to say, s 36(3) is a qualification of s 36(2) and s 36(4) and s 36(5) are qualifications on that qualification. While s 91R(1) refers only to Article 1A(2), it is clear enough that ss 36(3), 36(4) and 36(5) are intended to operate only within the context of s 36(2). It would be an anomalous construction to treat the concept of persecution in ss 36(4) and 36(5) as being different from the concept of persecution imported into s 36(2) by s 91R(1).
[44] [2005] FCA 1051
[45] at [38]
Justice Bennett also said[46]:
… [F]or the purposes of determining whether Australia has protection obligations to each appellant, who has a third country right, he must establish a well-founded fear of persecution both in his country of nationality and the third country. Both are relevant for the determination of the application of the Convention to him. In both cases, the persecution must involve serious harm.
[46] at 156-157 [26]
The Minister submits that the proposition that a protection visa applicant must show that he or she has a well-founded fear of persecution or will face significant harm both in their country of nationality and in a third country in respect of which they have a right to enter and reside can be readily accepted. What her Honour did not express a view on, however, was whether the Tribunal must consider s.36(2) and make findings in an applicant’s favour before considering s.36(3).
In NBGM v Minister for Immigration[47], Black CJ referred to NBLC at 528 [16] and observed that the language in ss.36(3)-(5), particularly the use of the words “however” and “also” at the commencement of each sub-section:
… affirms the relationship between the subsections, which was described by Bennett J in the same case: ‘s 36(3) is a qualification of s 36(2) and s 36(4) is a qualification to that qualification’ (at [17], see also Graham J at [47] describing the criterion in s 36(2) as ‘significantly qualified’ by s 36(3) and at [71]-[72]).
[47] (2006) 150 FCR 522
His Honour also said, at 529 [18], that the criterion of Australia having protection obligations to a person, which is established by s.36(2), is “statutorily negated in the circumstances in which s.36(3) applies”. His Honour further said that when that statutory negation takes effect, it is only “undone” by the operation of ss.36(4) or 36(5) (or, for that matter, s.36(5A), which had not been enacted at that time). In the same paragraph, Black CJ said that this meant that “the applicant will only be able to make good the criterion in s.36(2) by making out the exception in s.36(4) or s.36(5)”. Then at 530 [20], his Honour made the following important observation:
As a final matter of construction, I see no requirement for a decision-maker to be satisfied as to whether or not Australia has ‘protection obligations’ pursuant to s 36(2) before considering the qualification in s 36(3). In an appropriate case, it may indeed be proper for a decision-maker to consider first whether or not Australia is taken not to have protection obligations to the applicant by reason of the operation of s 36(3) (see NBLC at [48] (Graham J)). Such an approach finds a parallel in the permissible approach to Art 1 of the Convention: NAGV and NAGW of 2002 (High Court) at [47]. [Emphasis added.]
In SZSMG v Minister for Immigration & Anor[48], the Tribunal addressed the matters in ss.36(3)-(5A) without first determining whether the applicant attracted Australia’s protection obligations under s.36(2). Having referred to [25] of the plurality’s judgment in SZRTC, Judge O’Dwyer held, at [17], that, although the Tribunal had made “an error”, that error “d[id] not go to jurisdiction”. That was because s.36(3) would not have been engaged had the Tribunal taken the first step identified in SZRTC and found that the applicant could not satisfy s.36(2)[49].
[48] [2014] FCCA 776
[49] at [17]
Judge O’Dwyer’s orders were set aside on appeal, by consent, but on the basis of an argument not put to the primary judge, namely, that the Tribunal failed to consider whether there was a real chance that the United Kingdom would return the applicant to the People’s Republic of China or Hong Kong, as required by ss.36(5) and (5A).[50]
[50] SZSMG v Minister for Immigration [2014] FCA 877 at [2], [10]-[11] per Rangiah J
At [16], Rangiah J said that the case highlighted the “inconvenience and difficulty that can arise when matters are assumed, rather than determined”, that matter being whether Australia owed protection obligations to the applicant (that is, met the requirements of s.36(2)), which the Tribunal assumed in his favour. His Honour said that, had the Tribunal determined that issue, “it is at least possible that the application to the Federal Circuit Court and the appeal to this Court might not have eventuated”[51]. In this connection, the Minister notes that, while his Honour spoke encouragingly of the Tribunal first considering the matters raised by s.36(2) before turning its mind to s.36(3), albeit without referring to SZRTC, his Honour did not say that the failure to do so vitiates the Tribunal’s decision.
[51] at [16]
Reconciling the authorities
None of the authorities referred to above establish whether it is a jurisdictional error for the Tribunal not to consider first the question whether a review applicant has a well-founded fear of persecution (s.36(2)(a)) or is likely to suffer significant harm (s.36(2)(aa)) in his or her country of origin before considering ss.36(3)-(5A).
Both NBLC and NBGM were cited at [24] of the plurality’s reasons in SZRTC in support of the proposition that s.36(3) operates as a qualification on s.36(2) and that ss.36(4)-(5A) operate as qualifications on s.36(3). The Chief Justice’s statements in NBGM as to whether a decision-maker must first consider s.36(2) before addressing s.36(3) were made at 530 [20]. The Minister submits that this Court ought to infer that Tracey and Griffiths JJ were cognisant of Black CJ’s observations when their Honours said, at [25], that “[t]he correct approach” is for the decision-maker to consider each of ss.36(2)-(5A) sequentially.
The Minister’s submissions centre upon the following propositions. First, the fact that a certain approach to ss.36(2)-(5A) may be “correct” does not necessarily mean that an approach that does not comply strictly with it gives rise to jurisdictional error. Secondly, in the present case, the Tribunal did not “excee[d] its authority or powe[r]”[52] or “mak[e] a decision outside the limits of the functions and powers conferred on [it]”[53] in deciding that the applicant was a person to whom Australia did not owe protection obligations. Its findings as to the matters set out in ss.36(3)-(5A) are not affected by any error and do not affect the Tribunal’s exercise of jurisdiction. That is because, had the Tribunal made a finding in the applicant’s favour in respect of his fear of persecution or significant harm in Nepal under s.36(2), its findings on the matters set out in ss.36(5)(a) and (5A)(a) at [63]-[64] would have foreclosed the possibility that the outcome of his review application would have been different. Had those findings gone the other way, the Tribunal would have been required to inquire as to whether the applicant had a well-founded fear of persecution or would face significant harm in Nepal, as required by ss.36(5)(b) and (5A)(b). If either or both of those questions were answered in the affirmative, the applicant would have satisfied the criteria for a protection visa in ss.36(2)(a) and/or (aa).
[52] Craig v South Australia (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ
[53] Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 141 [163] per Hayne J
The Minister submits that consequently, by proceeding in the manner in which it did, the Tribunal, at worst, made an error within jurisdiction. To adopt the words of Hayne J in Re Refugee Review Tribunal; Ex parte Aala[54] at 141 [163], the Tribunal “incorrectly decid[ed] something which [it] [wa]s authorised to decide”.
[54] (2000) 204 CLR 82
That is the approach that was taken by Judge O’Dwyer in SZSMG at [17]. The Minister notes that on appeal, no criticism was made of this part of his Honour’s reasons (or, for that matter, any part, given that the appeal turned on an issue not raised in this Court)[55]. That being so, and there being nothing to suggest that the approach in SZSMG is plainly wrong, this Court ought to follow it as a matter of judicial comity[56].
[55] SZSMG v Minister for Immigration [2014] FCA 877 at [8], [12] per Rangiah J
[56] See also SZSTL v Minister for Immigration & Anor [2013] FCCA 1802 at [53] per Judge Emmett; SZTMA v Minister for Immigration & Anor [2014] FCCA 504 at [14] per Judge Emmett; SZTMA v Minister for Immigration [2014] FCA 925 at [10] per Nicholas J
The Minister further submits that an analogy can be drawn with those cases that say that there is no requirement in Australian law that Article 1A of the Refugees Convention be considered before exclusion under Article 1F[57] or that, in the context of particular social group claims, decision-makers must first consider whether a particular social group exists and whether the applicant is a member of that group before considering whether he or she fears persecution by reason of his or her membership of that group[58]. The Minister submits that there is nothing in the text or context of s.36 that would require, as a matter of jurisdiction, decision-makers to consider ss.36(2) and (3) sequentially. That, of course, is a different point from saying that it is ideal, desirable or even “correct” to consider s.36(2) before s.36(3).
[57] Minister for Immigration v Singh (2002) 209 CLR 533 at 539 [5] per Gleeson CJ, 563 [86], 578 [141(1)] per Kirby J; WAKN v Minister for Immigration (2004) 138 FCR 579 at 589 [41] per French J (as his Honour then was)
[58] See, for example, MZXDQ v Minister for Immigration [2006] FCA 1632 at [18], [25] per Finkelstein J; SZJRU v Minister for Immigration (2009) 108 ALD 515 at [50] per Besanko J; BRGAE of 2008 v Minister for Immigration [2009] FCA 543 at [21]-[25] per Collier J; SZNOE v Minister for Immigration [2012] FCA 96 at [78] per Greenwood J
In SZTPK, I adopted the plurality’s statements at [25] of SZRTC. However, the issue the subject of these proceedings did not arise in that case, given that the Tribunal had considered, and made findings in relation to, the criteria in s.36(2) before addressing s.36(3). The Minister submits that, in the light of Black CJ’s observations in NBGM at 530 [20] and those of Judge O’Dwyer in SZSMG at [17], the reasons of this Court at [35]-[36] of SZTPK should not be taken as suggesting that a decision-maker is jurisdictionally precluded from considering s.36(3) on the hypothesis that s.36(2) is met in an applicant’s favour.
The Minister’s submissions venture the suggestion that there may be some scope to argue that the Tribunal did not even make an error of law within jurisdiction. However, the Minister concedes that that would not be consistent with Judge O’Dwyer’s observations in SZSMG at [17]. The Minister submits that, even assuming that an error had been made, it could not be characterised as jurisdictional. Accordingly, relief could not be granted to the applicant.
The applicant’s submissions
The applicant’s position is a simple one, namely that it is clear from SZTRC that s.36 contains a “cascading series of qualifications”. Thus it is necessary for the Tribunal to first determine whether an applicant satisfied one or more of the criteria for a protection visa in s.36(2) before considering the qualifications in ss.36(3)-(5A). A failure to follow the correct procedure leaves a decision maker in a factual vacuum without regard to the circumstances of the case.
Resolution
There is no doubt that s.36(3) is not enlivened if the decision maker determines that a person does not qualify for protection pursuant to s.36(2). The question is whether s.36(3) is enlivened in circumstances where a decision maker makes no determination for the purposes of s.36(2). There is, in my opinion, a strong argument that the power to determine whether a protection visa applicant can find safety in a third country is not enlivened in the absence of a determination that the person has a well-founded fear of harm in their country of reference.
The proposition can be tested by reference to other parts of the cascading series of legislative qualifications in ss.36(3)-(5A). For example, would the power to make a determination under ss.36(4) or (5) arise in circumstances of the absence of any determination for the purposes of s.36(3)? The reality probably is that although there are a cascading series of qualifications in these provisions, the consideration of one or more qualifications will ordinarily support an ultimate conclusion. In my opinion, the observations by the plurality in SZRTC at [25] establish that it is an error not to follow the correct procedure established in that case. It does not follow, however, that it is a jurisdictional error. It may, in a particular case, be a jurisdictional error to assume that a person has a well-founded fear of harm in their country of reference for the purpose of considering the qualifications because the assumption deflects the decision maker from dealing with specific issues with which he or she must grapple for the purposes of considering the qualifications. Such issues will arise in particular cases but are not a general obstacle to the interpretation contended for by the Minister.
SZRTC does not establish that the error and approach in issue is a jurisdictional error. The decision of Black CJ in NBGM suggests that it is not a jurisdictional error. This Court in SZSMG found specifically that the error did not go to jurisdiction. More recently in SZRUT v Minister for Immigration & Anor[59] at [47] Judge Street found that there was no legal error in the approach of the Tribunal in dealing with s.36(3) in the same manner as was done in this case. His Honour also found that any error by the Tribunal was an error within jurisdiction and accordingly not a jurisdictional error.
[59] [2015] FCCA 263
I am not able to say that the decisions by Judge Street and Judge O’Dwyer are clearly wrong, and in the interests of comity I should follow them. It follows that the issue in contention is resolved against the applicant.
Conclusion
The applicant has failed to establish any jurisdictional error by the Tribunal. I will order that the application be dismissed.
I will hear the parties as to costs.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 20 March 2015
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