SZUDP v Minister for Immigration
[2016] FCCA 1640
•14 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUDP v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1640 |
| Catchwords: MIGRATION – Application for review of decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) – whether the Tribunal erred in consideration of s.36(3) of the Migration Act 1958 (Cth) and whether the Applicant had a right to enter and reside in India – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 425 |
| Cases cited: Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU (2013) 215 FCR 35; [2013] FCAFC 91 |
| Applicant: | SZUDP |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 844 of 2014 |
| Judgment of: | Judge Barnes |
| Hearing date: | 14 June 2016 |
| Delivered at: | Sydney |
| Delivered on: | 14 June 2016 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Respondents: | Mr Reilly |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 844 of 2014
| SZUDP |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal, dated 27 February 2014 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of Nepal, arrived in Australia in January 2009 and applied for protection in April 2013. His application was refused. He sought review by the Tribunal. He attended a Tribunal hearing. The only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal’s account in its reasons for decision.
In essence, the Applicant claimed to fear harm from Maoists in Nepal, and from members of the Chhetri caste. He claimed his father had been killed by the Maoists, who also took his brother, and that his mother was targeted and moved to India. He claimed that since the Maoists were against his family and he opposed their opinion they would kill him if he returned to Nepal. In support of his protection visa application, he elaborated on past events in Nepal and claimed threats from the Maoists.
In addition, the Applicant also claimed that he was a Brahmin and that the Chhetri Samaz may try to kill him, as his wife (from whom he had separated and who was of the Chhetri caste) had told them that he had tried to sell her to a brothel in Australia. He claimed he had separated from his wife in Australia, that she had threatened him that his life was not secure in Nepal and that she had complained to the Chhetri society in Nepal that he had tried to sell her.
In its reasons for decision, the Tribunal set out the Applicant’s claims in support of his protection visa application, his explanation of his claim at the Tribunal hearing and the discussion of issues the Tribunal raised with him in the course of the Tribunal hearing, including concerns about his claim that he feared the Chhetri caste. The Tribunal recorded that it put to the Applicant that it appeared that this was because of his personal situation and relationship, not because of his caste or his wife’s caste. It questioned him as to his claim that the whole of her caste or their representatives would be upset by or take an interest in their personal situation and relationship, rather than her family. The Applicant conceded that it was not the whole Chhetri society he feared. He referred in particular to his wife’s father.
In addition, the Tribunal recorded that it raised with the Applicant evidence that Nepali nationals could readily enter and reside in India under the Treaty of Mutual Friendship and ongoing administrative arrangements. It put to him the provisions of s.36(3) of the Migration Act 1958 (Cth) in relation to the possibility that he could avail himself of a right to enter and reside in India and avoid problems in that way. The Tribunal put to the Applicant that he had previously lived in India, for five years from 2000 to 2005 without encountering difficulties from the Maoists and that he had told the Tribunal that his problems with the Maoists were only in his own village in Nepal.
The Tribunal recorded the Applicant’s claim that the Maoists could be searching for him in India, that he was not educated, that it would be difficult to survive in India where he would have nothing to do, and that that his mother (who lived in India) was not well and he would be responsible for her. The Tribunal put information to the Applicant in relation to the situation and rights of Nepalese in India.
The Tribunal found that it had strong reservations about aspects of the Applicant’s case and that he was not an impressive witness. It found it apparent that his stated concern about Maoists in Nepal related to his father’s death in 2000 and that any problems would arise only locally in his own village in relation to ownership or use of family land and/or possible revenge for the deaths of Maoists for which his father might arguably be held responsible.
The Tribunal was also satisfied that the Applicant’s concern about his wife related essentially only to her father and his close relatives or associates, not to the Chhetri caste generally or its representatives, and that such concern was for personal rather than Convention reasons.
The Tribunal also stated that the Applicant’s lengthy delay in seeking protection indicated he did not have a genuine fear precluding return to Nepal.
The Tribunal found, however, that it was not necessary to reach conclusions as to whether Australia had protection obligations towards the Applicant based on his claimed fear of returning to Nepal, because he had a right to enter and reside in India within the meaning of s.36(3) of the Act.
The Tribunal discussed in some detail the matters it considered in determining whether third country protection was available.
In particular, in addressing whether the Applicant had a right to enter and reside in India, the Tribunal considered and applied the approach of the Full Court of the Federal Court in Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU (2013) 215 FCR 35; [2013] FCAFC 91 in holding that the term “right” in s.36(3) should not be restricted to a right in the strict sense which was legally enforceable, and included the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement, or a liberty or permission or privilege which did not give rise to any particular correlative duty upon the state in question.
The Tribunal stated that the “starting point” for consideration of whether the Applicant had a right to enter and reside in India was the Treaty of Peace and Friendship between India and Nepal of 1950. It referred to relevant provisions of that Treaty and noted that the Treaty did not itself deal with the rights of Nepalese nationals to enter India, but rather concerned their treatment once there. The Tribunal recognised that it was therefore necessary to turn to other sources to further examine the right of entry question. It had regard to independent country information, including information provided by the Department of Foreign Affairs and contained on the website of India’s Bureau of Immigration. Taking into account that information and having regard to the terms of the treaty itself and the information about administrative arrangements concerning entry to India by Nepalese nationals, as well as country information and other commentary on the ability of Nepalese citizens to enter and reside in India, the Tribunal was satisfied that “as a matter of practical reality” the Applicant had a right to enter and reside in India.
The Tribunal went on to consider the exceptions to the application of s.36(3) in particular whether he had well-founded fear of Convention- related persecution in India or there were substantial grounds for believing there would be a real risk he would suffer significant harm in India (see s.36(4)). It considered the Applicant’s claims at the hearing that while he would be able to enter India, he would be at risk there because the Maoists would search for him and target him and that he would face difficulties with employment and having to assume responsibility for his mother, who was living with her brother in India.
The Tribunal acknowledged the presence of Maoists groups in India as well as Nepal and links between such groups, but stated that it had found no information to indicate that Nepalese or Indian Maoists targeted Nepalese migrants in India, including those previously threatened in Nepal or with an association with Nepalese political parties or groups. It was satisfied in the circumstances of this case that Nepalese Maoists would not search for or target the Applicant in India, either on their own account or instigated by the father of the Applicant’s wife. The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution or that there was a real risk he would suffer significant harm in India because of his political opinion.
The Tribunal noted that the Applicant did not claim that the Chhetri would pursue him in India. In any event, it was satisfied there were not substantial grounds for believing he would face a real risk of significant harm in India in relation to his wife, her father or the Chhetri more generally.
The Tribunal acknowledged that there was some evidence of discrimination and hardship which may be faced by Nepalese migrants in India, particularly those without identity cards and in low-paying jobs, but recorded that it had found no reports that Nepalese in India were the subject of routine or extensive mistreatment or harm. Taking country information as a whole, the Tribunal not accept that the treatment of Nepalese in India was such that the mere fact of being Nepalese in India would give rise to a well-founded fear of persecution for a Convention reason or a real risk of significant harm.
The Tribunal noted that the Applicant had previously lived for an extended period in a large Indian city in North Bengal, and had been able to support himself without working through income received from a share in his paternal uncle’s business in Nepal and also that his maternal uncle was established in that Indian city. It was not satisfied that the Applicant had a well-founded fear of Convention-related persecution in India or that there were substantial grounds for believing that as a necessary or foreseeable consequence of him availing himself of his right to enter and reside in India, there would be a real risk he would suffer significant harm. It concluded that the provisions of s.36(3) were not excluded on this basis.
The Tribunal was not satisfied that the Applicant had a well-founded fear that the Indian authorities might return him to Nepal or a third country. Nor was there anything to suggest that the Indian authorities would return the Applicant to Nepal or to another country. Thus, it found it unnecessary to consider whether the Applicant would be subject to a real chance of persecution or a real risk of significant harm in Nepal. The Tribunal was satisfied that the qualifications in ss.36(4), (5) or (5A) were not applicable.
The Tribunal also found that although the Applicant had previously entered and resided in India, he had not taken any steps to continue to avail himself of his right to enter and reside in India and thus that he had not taken all possible steps to avail himself to that right.
The Tribunal concluded that Australia did not have protection obligations to the Applicant.
The Applicant sought review by application filed on 1 April 2014. He did not file any amended application, affidavit evidence or written submissions. He had the opportunity today to make oral submissions.
The first ground in the application is as follows:
1. Apprehended Bias and Lack of Procedural fairness (Natural Justice)
The tribunal did not consider my evidence and relied only upon the decision made by the delegate of the minister from the interview conducted earlier. The tribunal member who conducted my interview was suggestive and prompted me to answer the way he wanted to hear it. Paragraph 30 on Page 6 of the Refugee Review Tribunal’s Decision record proves that the Tribunal Member suggested me that my claim to hear (sic) harm was for personal situation and relationship. The tribunal member made speculations and hence committed an apprehended bias by suggesting me to answer the way he wanted to hear my answer. The Tribunal member stopped me from giving any clarifications. Therefore I claim that I did not get the Natural Justice or Procedural fairness.
As pointed out by counsel for the First Respondent, the fundamental difficulty that the Applicant faces with this claim is that insofar as he relies on what occurred at the Tribunal hearing there is no transcript of the Tribunal hearing in evidence.
Insofar as the Applicant referred specifically to paragraph 30 of the Tribunal decision, that is part of the Tribunal’s account of the Tribunal hearing. It is as follows:
30. The applicant stated that his wife had told the Chhetri society that the applicant had brought her to Australia and tried to sell her to a brothel, so if he returns to the Chhetri would torture him. She had threatened him about this in about November 2009. This was because of the Convention reasons of ethnicity and religion because he and his wife were from different castes and although both were Hindu the religion was somewhat different. The Tribunal suggested that although he claimed to fear harm from her caste (the Chhetri), it was not because of his or her caste but because of their personal situation and relationship. The applicant said it was because she had complained to the Chhetri society that a Brahmin had done this. Asked why it was that the Chhetri caste as a whole (or their representatives, the Chhetri society) would be upset by or take an interest in this rather than just her family, the applicant said she had been talking to the society and he fears from the whole Chhetri society. Chhetri people have kept asking his uncle’s son about his wheraboouts and when he will return.
Relevantly, although the Applicant did not refer to this in his application, the Tribunal went on (at paragraph 31) to record that it also put to the Applicant its concern that it might be understandable that his wife’s close relatives may be upset, but it was hard to believe that the Chhetri caste as a whole (about three and a half million people or 15 per cent of the Nepalese population) would care about a simple marital dispute. The Applicant was recorded as stating it was not Chhetri society as a whole, but only those who were members who were concerned.
The Tribunal also recorded that later in the hearing the Applicant referred in particular to his wife’s father, and when asked if it was just her father who might target him replied he was one of them, but not necessarily the only one, and that he could have someone else to do the job to give him trouble.
Neither these paragraphs nor any other part of the Tribunal’s account of the Tribunal reasons for decision is such as to establish either actual or apprehended bias.
The fact that the Tribunal raised with the Applicant its concern about aspects of his claims and whether there was a Convention nexus and reached a conclusion with which the Applicant disagreed is not indicative of a closed mind such as to indicate pre-judgment amounting to actual bias in the sense considered in the Minister for Immigration and Multicultural Affairs v JiaLegeng (2001) 205 CLR 507; [2001] HCA 17. There is nothing to indicate from the fact that the Tribunal raised these matters of concern with the Applicant that its mind was closed.
Nor is there anything in the evidence before the Court to establish apprehended bias from the perspective of the informed lay person aware of the matters in issue and the conduct said to give rise to an apprehension of bias (see Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425; [2001] HCA 28 in particular at [28]).
In particular, paragraph 30 of the Tribunal decision is not such as to support a claim of either actual or apprehended bias. Rather, as it recorded, this indicates that the Tribunal quite properly (having regard to its obligations under s.425 of the Act) raised potentially dispositive issues with the Applicant (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63) albeit that these were not matters that ultimately formed part of the Tribunal reasoning. It was appropriate for the Tribunal to do so. The fact that it did so is not such as to indicate from the perspective of the fair-minded informed observer that the Tribunal had a closed mind or that it had pre-judged the matter. Nor do the Tribunal reasons otherwise support any such claim.
I asked the Applicant what evidence he claimed the Tribunal had not considered. It appeared from his response that he took issue with the Tribunal’s conclusion that he could live safely in India. He confirmed that he disagreed with the Tribunal’s conclusion in this respect. However there is nothing in the material before the court to support any claim that the Tribunal failed to consider any aspect of the Applicant’s claims or evidence, or that it stopped the Applicant from giving any clarification, let alone that it did so in a manner constituting jurisdictional error. Ground 1 is not made out.
The second ground claims generally that India is not a safe country for relocation. Insofar as the Applicant takes issue with the Tribunal’s findings, he seeks impermissible merits review.
Ground two also contends that the Tribunal did not consider the “facts” that Nepalese people face discrimination and are not given State protection in India. It was contended that the Tribunal “made a purported decision based on speculation and not based on reality” and that it did not consider the Applicant’s “experiences of discrimination” while living in India, as were said to be referred to in paragraph 36 of the Tribunal reasons for decision.
In Ground 2 the Applicant also claimed that he had taken all possible steps to reside in India. It was contended that the Tribunal made a jurisdictional error by making a decision based on s.36(3) of the Act.
In paragraph 36 of the Tribunal decision (part of the Tribunal’s account of the hearing) the Tribunal recorded that the Applicant was asked if there was any reason he could not avoid problems in Nepal by living in India. It is as follows:
36. The applicant was asked if there was any reason why he could not avoid problems in Nepal by living in India. The applicant replied that he had been there before and knows the reality; even in India there are Maoists, there is an open border and they can come at any time. The Tribunal noted that they had not done so during the five years he had lived in India previously. The applicant asserted that they are searching for him. The Tribunal then reminded the applicant that he had said earlier that his problem with the Maoists was only in his own village in Nepal. After a pause, the applicant replied that it is true that he has a problem in the village but it could also be troublesome for him in other places, they could be searching for him. As soon as they know he has returned they will start the search. The Tribunal observed that they had not done so previously even though it would have been easy to do so as he was living in India with close relatives. The applicant then stated that although he had lives in Siliguri most of the time, he was not there permanently by changing places.
Although the ground does not refer to paragraph 37, I note that the Tribunal also recorded that it asked the Applicant if there was any other reason he could not live in India, apart from the Maoists. He claimed he would have other problems. He was not educated; it would be difficult to survive; he would have nothing to do; his mother was not well and he would be responsible for her so he could not go elsewhere.
The Tribunal recorded that it put to the Applicant the effect of country information about the rights of Nepalese in India, including in relation to employment, property purchase, access to education and health services and the difficulties of finding a particular person in a country of more than a billion people and given he had not been found before in the five years he lived there, as well as the lack of evidence suggesting Nepalese in India were targeted for serious or significant harm or that Maoists were targeting them or co-operating with Maoists in India to pursue and target them.
It recorded that the Applicant claimed that the Maoists would look for him in India, because they had been targeting him for a long time and suggested that they might have links to the Chhetri Society.
The claims made by the Applicant were considered by the Tribunal insofar as it was necessary to do so.
As set out above, the Tribunal considered the Applicant’s claims to fear the Maoists in India but, for the reasons that it gave which it had raised with the Applicant at the hearing, was not satisfied that he had a well-founded fear of persecution or faced a real risk that he would suffer significant harm in India because of his political opinion.
The Tribunal also considered the possibility of the Chhetri pursuing him in India, but found that there were not substantial grounds for believing he would face a real risk of significant harm in India in relation to his wife’s father or the Chhetri more generally.
The Tribunal acknowledged in its reasons for decision that there was some evidence of discrimination and hardship which may be faced by Nepalese migrants in India, but had regard to the absence of any reports that Nepalese in India were the subject of routine or extensive mistreatment or harm. It referred to country information. It did not accept that the mere fact of being Nepalese in India gave rise to a well-founded fear of persecution for a Convention reason or a real risk of significant harm. Moreover, it considered specifically the circumstances of the Applicant in light of his claims that he would face difficulties with employment and having to assume responsibility for his mother. It noted that he had previously lived for an extended period in a large Indian city and had been able to support himself without working through income received from a share in his paternal uncle’s business in Nepal. The Tribunal also had regard to the fact that the Applicant’s maternal uncle was established in that city.
Having regard to the nature of the claims made by the Applicant and the nature of the Tribunal’s findings, the Tribunal adequately addressed those claims and did not fail to have regard to an integer of the Applicant’s claims or to any evidence in a manner constituting jurisdictional error.
The Applicant’s disagreement with the Tribunal’s findings in this respect, in particular as to whether he faced discrimination in India such as to take him outside s.36(3) of the Act, otherwise seeks merits review.
The Applicant claimed that he had taken all possible steps to reside in India. The Tribunal considered this aspect of the Applicant’s claims. Reading the Tribunal decision fairly and as a whole it is apparent that it understood that the Applicant lived in India for five years and had left there in 2005. There was no suggestion that the Applicant had attempted to return to India since that time.
In these circumstances, it was open to the Tribunal to find that although the Applicant had previously entered and resided in India, he had not taken any steps to continue to avail himself of his right to enter and reside in India. Ground 2 is not made out.
Ground 3 is that the complementary protection criterion was “not considered carefully”. The Application refers to s.36(2)(a) of the Act (which relates to the Refugees Convention criterion). However it is apparent that the Applicant intended to take issue with the Tribunal’s consideration of whether there were substantial grounds for believing that as a necessary and foreseeable consequence of him availing himself of a right to enter and reside in India, there would be a real risk that he would suffer significant harm.
It is clear that the Tribunal did consider this issue, as is apparent from the Tribunal reasons for decision. Moreover, it was open to the Tribunal to deal with the application by considering the application of s.36(3) of the Act, without first determining whether any of the criteria in 36(2) had been satisfied. (See SZUDE v Minister for Immigration and Border Protection [2015] FCA 1202). As the Tribunal found that s.36(3) applied, s.36(2)(a) could not apply.
Insofar as this ground intended to take issue with the Tribunal’s consideration of s.36(3) of the Act, contrary to the Applicant’s suggestion, the Tribunal did give careful consideration to that provision.
I have considered whether any issue may be raised in relation to the Tribunal’s approach to the issue of whether the Applicant had a right to enter and reside in India, including the fact that in considering that issue the Tribunal stated that it was satisfied that “as a matter or practical reality” the Applicant had a right and reside in India.
However the approach taken by the Tribunal in this case is, in relevant respects, on all fours with the approach considered by the Full Court of the Federal Court in Minister for Immigration and Border Protection v SZUSU (2016) 237 FCR 305; [2016] FCAFC 50. In this case, as in SZUSU (cf SZTOX v Minister for Immigration and Border Protection [2015] FCAFC 77) the Tribunal considered the relevant Treaty between Nepal and India, understood that it was the “starting point” and, consistent with the remarks of Buchanan J in SZRHU, observed that the Treaty itself did not deal with the rights of Nepalese nationals to enter India and vice versa, but rather concerned itself with their treatment once in India, so that it was necessary to turn to other sources to further examine the right of entry question (see SZUSU at [25]-[26]).
The Tribunal then addressed that issue and proceeded to examine other sources. As in SZUSU, it engaged with an analysis of the term “right” consistent with the approach taken in SZRHU (which the Tribunal had cited in its reasons for decision) in a manner that indicates that it understood the principles in SZRHU and was applying them. The Tribunal had regard to that information in reaching its conclusions.
Consistent with the approach taken in SZUSU, the mere fact that the Tribunal used the expression “as a matter of practical reality” is not such as to indicate that it fell into jurisdictional error or misunderstood or misapplied the law in relation to a right to enter and reside in another country (see in that respect the discussion in SZUSU at [33] on).
In this case, as in SZUSU, the Tribunal analysed the country information in light of the applicable principles. It did not simply list the sources, but actually analysed the information. It had regard to the Treaty and considered the terms of the Treaty, together with any administrative or other arrangements in considering whether the evidence concerning the entry by Nepalese citizens into India met the test approved in SZRHU.
In these circumstances, the use of the expression “as a matter of practical reality” (while acknowledged by the Full Court of the Federal Court in SZUSU to be “unfortunate”) was no more than an instance of “looseness in language” or “unhappy phrasing” as described in SZUSU at [41] and not such as to indicate that the Tribunal failed to apply the test approved in SZRHU or otherwise fell into jurisdictional error.
No jurisdictional error is established, either on the basis contended for in ground 3 or having regard to the approach taken by the Full Court of the Federal Court in SZRHU and SZUSU.
In submissions in reply the Applicant reiterated his claims to fear harm, whether in India or elsewhere. As indicated, such claims seek impermissible merits review and do not establish reviewable error on the part of the Tribunal.
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. The Minister seeks costs in the sum of $5,600, which I note is somewhat less than the amount provided for by way of guidance in the Federal Circuit Court Rules. The Applicant told the Court that he had no money with him. However the Applicant’s present lack of funds is not a reason for departing from the normal principle that an unsuccessful Applicant should meet the costs of the first respondent. The Applicant’s lack of funds may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs, but is not a basis on which I am satisfied that costs should not be ordered or that the amount should be reduced. The amount sought is appropriate and reasonable in light of the nature of this and other similar matters.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 1 July 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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