SZUDX v Minister for Immigration

[2016] FCCA 2295

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUDX v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2295

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Tribunal’s decision affected by jurisdictional error by reason that it failed to consider the legal basis or nature of the applicant’s ability to enter and reside in India.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, ss.36, 474

Federal Circuit Court Rules 2001, r.44.12

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
MZZXS v Minister for Immigration & Border Protection [2015] FCA 1384

Applicant: SZUDX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 915 of 2014

Judgment of: Judge Cameron

Hearing dates: 4 and 14 March 2016

Date of Last Submission: 14 March 2016

Delivered at: Sydney

Delivered on: 14 March 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms N. Blake of Clayton Utz

ORDERS

1. A writ of certiorari issue directed to the second respondent quashing its decision dated 27 February 2014 (RRT case number 1318689).

2. A writ of mandamus issue directed to the second respondent requiring it to reconsider and determine the applicant’s application for review made on 11 December 2013 according to law.

3. The first respondent pay the applicant’s costs of the proceeding as agreed or assessed.

4. The Administrative Appeals Tribunal replace the Refugee Review Tribunal as second respondent in this proceeding.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 915 of 2014

SZUDX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Nepal who arrived in Australia on 22 October 2007. On 4 June 2013 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in Nepal because of his political opinion. On 12 November 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

2. The matter was listed today for a second day of hearing of the applicant’s application that the Minister should show cause why relief should not be granted to him. An order to show cause will not be made unless an applicant is able to demonstrate an arguable case for the relief claimed. It is also important to note that in the course of a show cause hearing the Court cannot re-hear the visa application underlying the application to show cause because the Court’s task in proceedings such as these is only to determine whether the Tribunal’s decision is affected by jurisdictional error because that is the only basis upon which it could be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. Under r.44.12(1) of the Federal Circuit Court Rules 2001, if the Court is satisfied that an applicant has raised an arguable case for the relief claimed, the Court may proceed to make final orders in relation to the claims for relief and the grounds mentioned in the application. 

4. For the reasons which follow, the Tribunal’s decision will be set aside and the matter remitted to be determined according to law.

Relevant legislation

1. At all relevant times s.36 of the Act relevantly provided:

   36Protection visas

   …

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (a)a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

   (aa)a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or

   …

   Protection obligations

   (3)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.

   (4)However, subsection (3) does not apply in relation to a country in respect of which:

   (a)the non‑citizen has a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

   (b)the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the country.

   (5)Subsection (3) does not apply in relation to a country if the non‑citizen has a well‑founded fear that:

   (a)the country will return the non‑citizen to another country; and

   (b)the non‑citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

   (5A)Also, subsection (3) does not apply in relation to a country if:

   (a)the non‑citizen has a well‑founded fear that the country will return the non‑citizen to another country; and

   (b)the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the other country.

Background facts

1. In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for a protection visa.  As summarised by the Tribunal, the applicant relevantly made the following claims in a statement attached to his protection visa application:

   a)his father was a wealthy man and a monarchist who had been targeted and subjected to extortion by the Maoist Party and their youth organisation, YCL.  His father had paid the Maoists and the YCL to keep his family safe;

   b)the Maoists had asked him to join them but he ignored them.  When they discovered that he left Nepal in 2007 they demanded more money from his father;

   c)as the Maoist and YCL demands grew his father was unable to pay them so they abducted his grandfather and then killed him when his father was unable to pay the ransom;

   d)YCL members had threatened to kill his father and all the male members of his family if his father reported them or failed to support them.  If he returned to Nepal he would be abducted and killed; and

   e)he had married in Australia and his wife introduced him to Christianity.  He was baptised in October 2012.  Many Hindus in Nepal hated and persecuted Christians.  The Maoists and YCL were also against Christianity so it would not be safe for him to return to Nepal.

2. The delegate was not satisfied that the applicant was a person to whom Australia has protection obligations.  In reaching that conclusion the delegate referred to the Treaty of Peace and Friendship between India and Nepal 1950 (“Treaty”) and found that the applicant had a right to enter and reside in India but had not taken all possible steps to exercise that right.  The delegate also found that the applicant would not face serious or significant harm in India and that he would not be returned to Nepal from India.

3. The applicant sought a review of the delegate’s decision with the Tribunal.  At a Tribunal hearing on 20 February 2014 the applicant relevantly claimed that while he would be able to enter India, he would be at risk there because as a new migrant he would not be able to earn much money.  He also claimed that it would be difficult for him to obtain a ration card and a job.  The applicant claimed that although there were millions of Nepalese people living and working in India, it would be different for him because of his Christian beliefs.  He claimed that although there were many Christians in India, there were also anti-Christian groups and Christians were not accepted.  The applicant claimed that Hindus and Muslims were always trying to harm Christians and his safety would not be guaranteed.  He claimed that Indian citizens were not safe in India and that he would not be safe either.

The Tribunal’s decision and reasons

1. On 27 February 2014 the Tribunal affirmed the delegate’s decision to refuse the applicant a protection visa.  In doing so, it referred to the Treaty and in particular to Article 7 which grants to Nepalese citizens in India:

   ... the same privileges in the matter of residence, ownership of property, participation of trade and commerce, movement and other privileges of a similar nature.

   The Tribunal noted that the Treaty itself did not deal with the rights of Nepalese nationals to enter India but was concerned with their treatment once they entered India.  It referred to information on the website of the Indian Bureau of Immigration which had been provided to it by the Department of Foreign Affairs and Trade in assessing the right of entry under the Treaty.  That information indicated that:

   a)Nepalese citizens entering India by land or air did not require a passport or a visa.  Those entering by air were required to show any one of a number of valid identity documents to establish their Nepalese citizenship;

   b)when entering India from places other than Nepal, Nepalese citizens had to be in possession of their passports and those with valid Nepalese passports, such as the applicant, could enter India by air directly from Australia; and

   c)unlimited stay in India was guaranteed to Nepalese citizens and there were no restrictions on their ability to remain, reside or work there.

   The Tribunal also referred to other country information indicating that Nepalese citizens could attend schools and access health services in India, that over five million Nepalese people worked and owned property in India, that there were sizeable Nepalese communities in India, that there was a shifting population between the two countries and that the free border movement between them had led to transnational social networks.  Taking that information into account, the Tribunal was satisfied that, as a matter of practical reality, the applicant had a right to enter and reside in India. 

2. The Tribunal went on to consider whether the applicant would face a risk of serious or significant harm in India and concluded that he would not.  In that regard:

   a)the Tribunal accepted that the applicant had converted to Christianity in Australia and that his conversion was not for the sole purpose of strengthening his claim for protection.  It noted that he claimed to be an evangelical Christian and to have undertaken some evangelising in Australia.  While it accepted that in India there had been discrimination and violence against minorities, including Christians, the Tribunal noted country information indicating that Christians constituted the majority in three Indian states in the north-east of the country and that there were Christian communities in many of the major cities in India.  It also noted information indicating that the motivation for persecution, which was not widespread and occurred predominantly in five central and southern Indian states, was based on factors such as caste discrimination and coercive or offensive proselytising.  Having regard to that information, the Tribunal found that it would be possible for the applicant to live in any of the areas which had Christian communities that were not at risk of attack by extremists.  The Tribunal was therefore not satisfied that the applicant would face harm because of his religion in India;

   b)although the applicant did not raise the issue of Maoists in relation to India, the Tribunal nevertheless considered whether he would face harm there for that reason.  In that connection it noted that there were Maoist groups in India and in Nepal and that there was evidence of historical links between them.  However, the Tribunal noted that country information indicated that since the Maoists in Nepal had joined the government in 2006, links between the communist parties in India and Nepal had declined.  It noted that it had found no information to indicate that Nepalese or Indian Maoists targeted Nepalese migrants in India or that Nepalese Maoists crossed the border into India to pursue, identify and target persons they had previously threatened in Nepal;

   c)the Tribunal referred to the applicant’s claim that he would be unable to obtain a ration card in India and that without one he would be unable to find work or housing.  It noted that country information indicated that ration cards were issued to Indian citizens.  The Tribunal noted that there were about twelve million Nepalese citizens living in India who did not have access to the ration cards and who were able to live normal lives, acquire property and obtain employment and schooling; and

   d)while noting that there was evidence of discrimination and hardship faced by Nepalese migrants in India, particularly those without identity cards and those who worked in low paid jobs, the Tribunal found no reports that Nepalese citizens in India were the subject of routine or extensive mistreatment or harm.  Taking into account the country information as a whole, the Tribunal did not accept that the treatment of Nepalese people in India was such that the mere fact of being Nepalese gave rise to a well-founded fear of persecution or a real risk of significant harm.

3. The Tribunal also considered whether the Indian authorities might return the applicant to Nepal or a third country.  In that regard, it referred to country information which indicated that Nepalese nationals in India could be forcibly removed if convicted of a crime in either Nepal or India and that they could be deported from India after completing their sentences for crimes committed in India.  It noted that country information identified criminal activity as the sole reason that authorities in India would return a Nepalese national to Nepal and found that there was no other independent information to suggest that Indian authorities could or would return a Nepalese citizen to Nepal for any other reason.  The Tribunal noted that the applicant had not been convicted of any crime and that there was no suggestion that he would engage in criminal activity in the future.  It was therefore not satisfied that the applicant had a well-founded fear that India would return him to Nepal and found that there was nothing to suggest that the Indian authorities would send him to a country other than Nepal.

4. The Tribunal concluded that the applicant had a right to enter and reside in India and that he was not subject to the qualifications in sub-sections (4), (5) or (5A) of s.36 of the Act. It found that the applicant had not taken any steps to avail himself of his right to enter and reside in India. Having found that s.36(3) of the Act applied to the applicant, the Tribunal found that it was not necessary for it to reach conclusions on whether Australia had protection obligations towards the applicant based upon his claimed fear of returning to Nepal.

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.The tribunal relied on my past immigration history to decide on my claims for being a refugee.  The Tribunal committed a jurisdictional error by asking me questions about my student visa and why did I not continue studying in Australia.  The Refugee Review Tribunal Member asked me such irrelevant questions which had nothing to do with my claims.  Rather than considering my claims, I was misled and made nervous.  The Tribunal made jurisdictional errors by asking me irrelevant questions.

   2.The Tribunal only concentrated on INDIA rather than my own country when I claim to be harmed.  I am a citizen of Nepal and not the citizen of INDIA.  If I cannot feel safe in the country where I am a citizen of, how could the tribunal expect and suggest me that I would be safe elsewhere.  INDIA is a very largely populated country.  More than half of India’s population live under poverty and in the lack of Human Rights.  How can someone like me who is not even a citizen seek any sort of security or protection in India?  It is a well-known fact that Nepalese hate Indians and Indians hate Nepalese people.  How can I even imagine surviving in India, let alone my taking all possible steps to go to India?  Why would anyone take any step to go to a country where they know they will not be protected?  I claim the Tribunal committed apprehended biasness in suggesting me to go India.

   3.Complimentary Protection criterion not considered carefully. Section 36(2)(a)

   The Tribunal has agreed and said it was satisfied that I did not convert into a Christian for the sole purpose to strengthen my claims as a refugee.  I have committed my entire to my Lord Jesus Christ and I have committed myself to evangelize wherever I go.  I will evangelize even if I am sent back to Nepal as I cannot imagine my life without ever evangelizing.  If the Tribunal can accept that I did not become a Christian only for the sole purpose to strengthen my claims as a refugee why cannot the Tribunal accept my actions of evangelizing will cause me harm in both Nepal and India, which are known as the Hindu countries of the world.  The conservative Hindu activists like the Pashuati Sena and Shiv Sena cadres will kill me if they find me evangelizing.  It is well known that being a Christian or converting into Christianity is not considered as a punishable offence in Nepal and India however converting someone else into Christianity is punishable in both countries.  How can I be suggested to go to such countries where I know I will be punished?  The Tribunal committed jurisdictional error by being suggestive and for making a decision without given any benefit of the doubt.

2. None of the grounds pleaded by the applicant disclosed an arguable case for the relief sought by him in his application. 

Ground 1

1. In the first ground of the application, the applicant raised issues concerning questions which the Tribunal asked him during the course of its hearing, alleging that they were not relevant to his review.  The relevant issue is, however, not the questions which were asked by the Tribunal but the information it relied on and the questions it posed for itself, which is to say, the legal tests that it applied in reaching a decision on the review.  Nothing raised in the first ground of the application points to any jurisdictional error on the part of the Tribunal. 

Ground 2

1. The complaint made by the applicant in the second ground of the application misunderstood the basis of the Tribunal’s decision. In the second allegation, the applicant referred to issues relating to India and observed that his claim for protection related to his country of nationality, namely Nepal. However, the Tribunal considered the issue of India because it appeared to it that the applicant had a right to enter that country and, pursuant to the Treaty, to reside there without a well-founded fear of persecution for a Refugees Convention reason or a real risk of significant harm, as that term is understood for the purpose of Australia’s complementary protection obligations. It was appropriate that the Tribunal give consideration to whether the applicant had a right to enter and reside in India because it was required to do so by s.36 of the Act.

Ground 3

1. In the third ground of his application, the applicant appeared to complain that the Tribunal did not consider whether or not he was entitled to a protection visa pursuant to Australia’s complementary protection obligations or whether evangelising in India or Nepal would lead to harm.  Because the Tribunal found that the applicant had a right to enter and reside in India without material risk of harm, it was unnecessary for it to consider the situation which might confront him in Nepal were he to undertake Christian evangelism there.

2. In relation to the situation in India, in para.73 of its reasons the Tribunal found that the applicant could live in India notwithstanding his Christianity if he resided in Christian communities or at least in areas where there were Christian communities which are not at risk of harm or attacks by extremists.  The Tribunal observed that persecution, where it occurred, was based, amongst other reasons, on coercive or offensive proselytising.  It would seem that the applicant did not suggest to the Tribunal that such evangelism as he would wish to practise would be either coercive or offensive.

3. In the third ground of the application, the applicant also stated that the Tribunal had not given him the benefit of the doubt but the Tribunal was not obliged to give him the benefit of the doubt.

Submissions at hearing

1. At the hearing of this application, the applicant raised a number of matters which went to the merits of his visa application.  For the reasons given earlier, the Court is not empowered to reconsider the applicant’s claim to entitlement to a protection visa and nothing that the applicant raised in that connection amounted to an arguable case of jurisdictional error on the Tribunal’s part.

Other matter

1. Notwithstanding the fact that the applicant’s case, as presented by him, was not arguable, in the proper discharge of his obligations as a model litigant the Minister has brought to the Court’s attention an authority which is, in my view, decisive in this case.

2. In circumstances very similar to those in this case, North J found in MZZXS v Minister for Immigration & Border Protection [2015] FCA 1384 that when considering whether a Nepalese national has a right to enter and reside in India, it is important for the Tribunal to consider not only that a Nepalese national can enter India but the basis upon which he or she is entitled to do so. His Honour said at [14]:

   I accept the applicant’s argument that the way the Tribunal went about its task demonstrates that it did not undertake a process of evaluation of the evidence. In [53] the Tribunal does no more than list the three sources previously referred to in its decision, namely, the Treaty, the Indian government website, and the Australian government website, and conclude that these sources prove a right of the applicant to enter and reside in India. The Tribunal refers to the Indian government website as setting out administrative provisions. But all the website says is that citizens of Nepal may enter India from outside Nepal if they have a passport. That may be a consequence of some administrative provision. The conclusion of the Tribunal does not disclose whether there was an administrative provision and, if so, the nature of that provision. In order to assess whether the entry is pursuant to a right to enter and reside under s 36(3) of the Act the Tribunal needs to know by what means the entry is permitted. (emphasis added)

3. His Honour also said at [16], in the context of the Tribunal decision in that case:

   … the Tribunal did not understand that a right under s 36(3) of the Act is not established if all that exists is a capacity to bring about a lawful entry.

4. I understand his Honour to have been saying that there is a difference between the Tribunal identifying that Nepalese nationals can enter India, and the practical steps taken to achieve that end, and the existence of the right which permits such entry.  As I understand him, his Honour said that it is insufficient to observe that a Nepalese national can enter India and that the Tribunal must identify by what legal authority, permission or licence the Nepalese national may do so.  In this case, as in MZZXS, the Tribunal do not undertake that inquiry and therefore erred. 

Conclusion

1. For these reasons, the decision of the Tribunal will be set aside and the matter remitted to the second respondent to be determined according to law. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 5 September 2016