SZUHR v Minister for Immigration

Case •

[2015] FCCA 3193

•

2 December 2015

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUHR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3193
Catchwords:
MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – whether Tribunal properly considered s.36(3) of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476
SZTOX v Minister for Immigration and Border Protection [2015] FCAFC 77
Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91; (2013) 215 FCR 35
V856/OOA v Minister for Immigration and Multicultural Affairs [2001] FCA 1018; (2001) 114 FCR 408
SZRTC v Minister for Immigration and Border Protection [2014] FCAFC 43
NBLC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 272; (2005) 149 FCR 151
SZUDE v Minister for Immigration and Border Protection [2015] FCA 1202
NBGM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 60
SZSMG v Minister for Immigration & Anor [2014] FCCA 776
SZTOG & Ors v Minister for Immigration & Anor [2015] FCCA 180
SZTQN v Minister for Immigration & Anor [2015] FCCA 188
Selvadurai v Minister for Immigration & Ethnic Affairs & Anor (1994) 34 ALD 347
Mukto v Minister for Immigration & Multicultural Affairs [1999] FCA 1801
NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6; (2005) 222 CLR 161
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; 144 FCR 1
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17 (2001) 205 CLR 507
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
Applicant: SZUHR
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL
File Number: SYG 1224 of 2014
Judgment of: Judge Nicholls
Hearing date: 16 March 2015
Date of Last Submission: 6 July 2015
Delivered at: Sydney
Delivered on: 2 December 2015

REPRESENTATION

Applicant: In Person

Counsel for the Respondents

Solicitors for the Respondents:

Mr M J Smith

Australian Government Solicitor

ORDERS

  1. The second respondent is amended to read “Administrative Appeals Tribunal”.

  2. The application made on 7 May 2014 is dismissed.

  3. The applicant pay the first respondent’s costs set in the amount of $6646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1224 of 2014

SZUHR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 7 May 2014 seeking review of the decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 9 April 2014 which affirmed the decision of the Minister’s delegate to refuse a Protection (Class XA) visa to the applicant.

Background

  1. In evidence before the Court is a bundle of relevant documents filed by the Minister (“Court Book” – “CB”). The applicant is a citizen of Nepal. He arrived in Australia on 26 April 2009 as the holder of a student dependent visa which was obtained by the use of a “false” marriage certificate ([11] at CB 95) or as the applicant described it, “…used false marriage document…” (item 27 at CB 3).

  2. The applicant claimed to fear harm in Nepal from Maoists because of his political profile. He claimed to be a member of the Nepali Congress Party, to whom the Maoists were opposed. The applicant also claimed to fear harm from his political opponents and criminals in circumstances where, as a businessman, he had refused to pay protection money demanded by local Maoists.

  3. The delegate refused to grant the protection visa on 2 October 2013 (CB 44 to CB 69).

  4. The applicant applied to the Tribunal for review of the delegate’s decision on 29 October 2013 (CB 70 to CB 75). He attended a hearing before the Tribunal on 8 April 2014 (CB 82).

  5. The Tribunal affirmed the delegate’s decision (CB 93 to CB 105). The Tribunal expressed “general doubts” about the applicant’s claims to fear harm in Nepal ([16] at CB 96). In his submissions, the Minister describes these doubts as “serious doubts” (with reference to [16] at CB 96). However, the Tribunal does not express any relevant conclusion in those terms.

  6. At its highest, the Tribunal described the applicant’s claims and evidence, variously, as leaving it “concerned”, as being “insincere”, “spurious”, “unpersuasive” and as casting “some doubt” on claims in relation to the extent that he was pursued by the Maoists. The Tribunal also said that in some of the applicant’s answers to questions, he “replied vaguely” (see [16] at CB 96 to CB 97).

  7. The Tribunal rejected key factual claims made by the applicant in support of his general claim to fear harm in Nepal ([17] at CB 98). What is missing in the Tribunal’s decision record, even on a fair reading, are findings that the applicant did not have a well-founded fear of serious harm if he were to return to Nepal, and a finding that there was not a real risk he would suffer significant harm if he were to return to Nepal.

  8. The sole basis, therefore, for the Tribunal’s affirmation of the delegate’s decision is that the applicant had a right to enter and reside in India, was not at risk of Convention related persecution, or of significant harm in India, and that in those circumstances, s.36(3) of the Act (and with reference to s.36(4), (5), (5A) and (6) of the Act) meant that Australia did not have protection obligations to the applicant.

Application before the Court

  1. The applicant’s grounds of his application are as follows:

    “1. I am not happy with the RRT’s decision based on the fact that the Tribunal Member simply ignored me for my safety and I believe that the Tribunal Member committed a jurisdictional error in that there was no pure evidence to support certain factual findings made by the Tribunal Member in relation to my safety by relocating to India.

    2. It is contended that jurisdictional error is evident in the way in which the Tribunal Member failed to make a proper genuine and realistic assessment of my fear of being harmed or killed by the Maoists even if I relocate to India as I believe the Tribunal member overlooked the fact that I could not get effective or meaningful protection in India due to discrimination against Nepalis and lack of legal rights.

    3. It is contended that my evidence before the Tribunal was inferentially adversely construed against my claims. This is injustice.”

  2. Before addressing the grounds of the application before the Court it is convenient to address the question of the Tribunal’s approach and consideration leading to the finding that the applicant had a right to enter and reside in India.

Consideration: The Test in Section 36(3) of the Act

  1. It is not clear why the Tribunal did not make a concluding finding in relation to the harm claimed in Nepal. Given its relevant reasoning and findings, that appears to have been available to the Tribunal.

  2. However, the Court can only proceed on what is before it. On a fair reading of its decision record, such a finding cannot be said to have been made as a separate and independent basis for affirming the delegate’s decision. This understanding of the Tribunal’s approach is reinforced by the last two paragraphs of the decision record under the heading “Conclusion” ([41] – [42] at CB 103). It is clear that the sole basis for the Tribunal’s decision was its application of s.36(3) of the Act, which is, relevantly, in the following terms:

    “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.”

  3. In this light, at the hearing of the this matter before the Court, leave was granted to the parties to make further written submissions on the questions of (Minister’s written submissions of 25 March 2015 at [1] (“Minister’s second written submissions”)):

    “…

    (a) Did the Tribunal commit the type of error identified by Judge Manousaridis in SZTOG v Minister for Immigration and Border Protection [2015] FCCA 180 (SZTOG) and SZTQN v Minister for Immigration and Border Protection [2015] FCCA 185 (SZTQN) when considering the application of s 36(3) of the Migration Act  1958 (Cth); and

    (b) Did the Tribunal fall into error in considering s 36(3) of the Migration Act without first determining that the applicant was owed protection obligations under s 36(2)?”

  4. In relation to the first question, the Full Court of the Federal Court subsequently handed down judgment in SZTOX v Minister for Immigration and Border Protection [2015] FCAFC 77 (“SZTOX”) dealing directly with the test to be applied in s.36(3) of the Act. The parties were granted further leave to file written submissions in relation to the question as to whether the current matter was affected by the Full Court judgment in SZTOX. Both parties filed further written submissions (on 29 June 2015 and 6 July 2015).

  5. In the current case, the Tribunal found that the applicant, as a national of Nepal, had a right to enter and reside in India within the meaning of s.36(3) of the Act ([26] at CB 100).

  6. Prior to SZTOX, the leading Full Court authority in relation to s.36(3) of the Act was Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91; (2013) 215 FCR 35 (“SZRHU”). In SZTOX (at [30], the Full Court summarised “the salient points established in” SZRHU. For current purposes the following parts of that summary are relevant (SZTOX at [31] – [35] and [38]):

    “[31] First, the test which lay at the heart of the new discredited doctrine of effective protection (as opposed to s 36(3)) was one concerned with ‘practical reality and fact’ ([41], [42] and [47]).

    [32] Secondly, the doctrine of ‘effective protection’ which had been read into s 36(2) of the Act in various decisions of the Court was rejected by the High Court in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6; (2005) 222 CLR 161 at [27] and [42] ([68]-[70]).

    [33] Thirdly, the ‘right’ referred to s 36(3) does not mean only a legally enforceable right under domestic law, but also includes a ‘liberty, permission or privilege lawfully given’, as Allsop J had held in V856/OOA ([56]).

    [34] Fourthly, the ‘right to enter and reside’ as referred to in s 36(3) is not confined to a right which is consonant with nationality or citizenship. As noted above, it can include a ‘liberty, permission or privilege lawfully given’, which does not mean that the ‘right’ under s 36(3) must be capable of being vindicated in the courts and under the domestic law of the receiving country ([76], [78] and [89]).

    [35] Fifthly, the phrase in s 36(3) referring to a right ‘however that right arose or is expressed’ suggests a less stringent and broader test than a legally enforceable right arising under domestic law, as also does the notion in s 36(3) of temporary residence ([35]).

    …

    [38] Eighthly, the Tribunal was in error in SZRHU to consider that the terms of the Treaty established a legally enforceable right to enter and reside in India. The Tribunal should heed the actual terms of the Treaty and consider whether those terms, together with any administrative or other arrangements established by the evidence considering the entry by Nepalese citizens at the Indian border, and consider whether they satisfy the correct test as established in V856/OOA, and approved in SZRHU ([90]).”

  7. The Full Court set out the following in relation to the Tribunal’s approach in that case (SZTOX at [7]):

    “However, the Tribunal found that s 36(3) applied. It reached this conclusion after having regard to the appellant’s circumstances and information before the Tribunal about the relationship between Nepal and India. It referred to Attachment B of its reasons, which summarised country information in relation to the rights of Nepalese nationals to enter and reside in India and to the circumstances of Nepalese nationals in India. The Tribunal’s ultimate conclusion on the application of s 36(3) is set out in [51] of its reasons for decision:

    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 (of which he has not taken all possible steps to avail himself) to enter and reside in India.

    (Emphasis added).”

  8. The Full Court’s relevant reasons for finding that the Tribunal in SZTOX fell into jurisdictional error were as follows (at [39] – [40]):

    “[39] It is notable that the Tribunal in this proceeding made no reference at all in its reasons for decision to the Full Court’s decision in SZHRU. That omission may not have carried any significance if the Tribunal’s reasons otherwise revealed that it properly understood and applied the relevant principles established in SZHRU. But that is not the case. On the contrary, the Tribunal’s reference in [51] of its reasons for decision to it being satisfied, ‘as a matter of practical reality’, that the appellant had a right to enter and reside in India strongly suggests that the Tribunal was labouring under a misapprehension that the correct test under s 36(3) was that which applied under the now discredited doctrine of effective protection. That is inconsistent with SZRHU and involves jurisdictional error.

    [40] Furthermore, the Tribunal’s erroneous reference to the concept of ‘practical reality’ casts serious doubt on whether it properly understood the significance of decisions such as V856/OOA and SZRHU on the meaning of the term ‘right’ in s 36(3). The Tribunal made reference in [51] of its reasons for decision to ‘a right’, but otherwise failed to demonstrate that it properly comprehended the correct meaning of that term, as established again in V856/OOA and SZHRU. In particular, there is nothing to suggest that the Tribunal properly appreciated that a ‘right to enter and reside’ for the purposes of s 36(3) is not confined to a legally enforceable right, but extends to include a ‘liberty, permission or privilege lawfully given’ in accordance with the relevant authorities of this Court.”

  9. As is made clear from the above in SZTOX, the Full Court set out the relevant law and principles from SZRHU to be applied by the Tribunal in assessing whether s.36(3) of the Act applied in a relevant application for a protection visa.

  10. In its consideration of what the Tribunal had done in that SZRHU, I respectfully understood the Court to rely on the following elements, drawn and summarised from the above.

  11. First, it was “notable” that the Tribunal did not refer to SZRHU in its reasons for decision (SZTOX at [39]). Second, this may not have “carried any significance” if the Tribunal had otherwise, in its reasoning, “revealed that it properly understood and applied the relevant principles” noted in SZTOX (at [39]). That was “not the case”.

  12. Third, the Tribunal’s reference in its reasoning to “being satisfied” as a matter of “practical reality”  that the applicant ([39] of SZTOX):

    “…had a right to enter and reside in India strongly suggests that the Tribunal was labouring under a misapprehension that the correct test under s 36(3) was that which applied under the now discredited doctrine of effective protection. That is inconsistent with SZRHU and involves jurisdictional error.”

  13. Fourth, that the “erroneous reference” to “practical reality” cast serious doubt on whether the Tribunal “properly understood the significance of decision such as V856/OOA and SZRHU on the meaning of the term ‘right’” in s.36(3) of the Act (SZTOX at [40]).

  14. Fifth, the Full Court found (SZTOX at [40]):

    “…In particular, there is nothing to suggest that the Tribunal properly appreciated that a ‘right to enter and reside’ for the purposes of s 36(3) is not confined to a legally enforceable right, but extends to include a ‘liberty, permission or privilege lawfully given’ in accordance with the relevant authorities of this Court.”

  15. Sixth, the Full Court found in SZTOX (at [41]):

    “For completeness, lest there be any doubt, we should also state that the ‘right to enter and reside’ for the purpose of s 36(3) is not confined to a right which is sourced in domestic law, such as a statute or regulation or other legislative instrument. The right might also be sourced in an executive act, such as a Treaty, executive policy or statement or other executive instrument. These examples are not intended to be exhaustive. The proper construction of s 36(3) must accommodate the potentially wide range of laws and executive acts which could create a right or entitlement in the relevant sense for a person to enter and reside in another country.”

  16. In the current case, there are distinct differences to what was found to be the situation in SZTOX.

  17. In the current case, the Tribunal referred to SZRHU and V856/OOA v Minister for Immigration and Multicultural Affairs [2001] FCA 1018; (2001) 114 FCR 408 (“V856/OOA”) for the proposition that the term “right” in s.36(3) of the Act “…should not be restricted to a right in the strict sense which is legally enforceable…”. That is, in its decision record, the Tribunal stated that the term “right” ([20] at CB 98):

    “…should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.”

  18. This is consistent with what was said in SZTOX at [33], SZRHU at


    [45] – [47] and [79] and V856/00A at [31]. The Tribunal noted the applicant’s evidence that he had agreed that he appeared to have a right to enter and reside in India. The Tribunal found, therefore, that the applicant had “a right to enter and reside in India within the meaning of s.36(3)” of the Act ([21] at CB 98).

  19. The Tribunal reached this conclusion in the following way. It had regard to the 1950 Treaty of Peace and Friendship between Nepal and India and, in particular, some of its relevant terms concerning reciprocal arrangements applying to nationals of both countries ([22] at CB 99).

  20. The Tribunal also considered various sources which it said indicated that “…as a matter of common understanding and practice”, Nepalese citizens could enter India without visa or work restrictions, reside and work there, and access various services. The Tribunal found that “while the 1950 Treaty does not mention a right of entry for Nepalese nationals, its terms are generally understood to imply that such a right exists” ([23] at CB 99).

  21. The Tribunal also considered “administrative or other arrangements that Nepalese nationals face at the border”. It relied on recent advice from Department of Foreign Affairs and Trade in this regard (see [24] at CB 99).

  22. Based on this the Tribunal found ([25] – [26] at CB 100):

    “[25] The Tribunal draws the following conclusions from the above:

    - Based on the terms of the bilateral Nepalese-Indian treaty, commentary, and country information about the administrative and other arrangements that apply in practice – as well as the applicant’s own account of his experiences in India – Nepalese nationals have a right to reside in India, temporarily or permanently.

    - Although the bilateral Nepalese-Indian treaty does not expressly mention the entry by Nepalese nationals into India, commentary on the treaty, country information about the administrative practices at the Nepalese/Indian border (including the lack of checks and controls), and the applicant’s own experiences, also indicate that Nepalese nationals have a right to enter into India.

    [26] The Tribunal finds that the applicant, as a Nepalese national, therefore has a right to enter and reside in India, within the meaning of s.36(3) of the Act.”

  1. I agree with the Minister that this approach is consistent with what was relevantly set out in SZRHU, and as “highlighted” in the relevant summary in SZTOX. I agree with the submission that the Tribunal’s analysis reveals that it understood the term “right”, as referred to in s.36(3) of the Act, in light of what was held in V856/00A and in SZRHU, that is, it was not “limited” to a legal right. It proceeded in its analysis consistently with the authorities.

  2. The Tribunal considered that the Treaty itself did not, in its express terms, mention a right of entry for Nepalese nationals into India (see SZTOX at [36] and SZRHU at [88] and [94]). In that light, the Tribunal had regard to “administrative and other arrangements for entry” of Nepalese nationals into India ([24] at CB 99, SZTOX at [37] and SZRHU at [88]). The Tribunal sought “further information relevant to the correct test to be applied” (SZRHU at [88]) and, in particular, had regard to a BBC report on this matter ([23] at CB 99, see also SZTOX at [37]).

  3. In the current case, the Tribunal had regard to the actual terms of the Treaty and made an evaluation “… in combination with the terms of the Treaty, the administrative arrangements for entry by Nepalese citizens at the Indian border…” (SZRHU at [90] and SZTOX at [38]). In that light, the Tribunal applied the correct test.

  4. The Minister submitted that Tribunal’s error in SZTOX, as found by the Full Court, contained, primarily, two elements. First, in SZTOX the Tribunal used the phrase “as a matter of practical reality” in finding that the applicant, in that case, as a Nepalese national had a right to enter and reside in India. Further, that there was no reference in that Tribunal’s decision record to SZRHU.

  5. In the current case, the Tribunal did not use that impugned phrase. Its use of the phrases “apply in practice” and “administrative practices” at [25] (at CB 100), were references to the “administrative and other arrangements” to which it had had regard, consistent with SZRHU (particularly see at [90]), this was not a reference simply to the right to enter and reside, as occurred in SZTOX. The focus of the reference, at these parts of the Tribunal’s reasoning, was on the administrative arrangements, not the right to enter.

  6. Further, unlike the Tribunal in SZTOX, the Tribunal did refer to SZRHU. It drew directly on relevant reasoning in that case, to then evaluate the administrative arrangements that were in place. The Tribunal was concerned with determining whether, with the Treaty, the administrative arrangements constituted a right that is a “liberty, permission or privilege lawfully given” (with reference to V856/00A) to enter and reside in India. Its conclusion that Nepalese nationals have such a right was consistent with the correct test, as explained in the relevant authorities.

  7. I should note, I respectfully understand, that the use of the term “as a matter of practical reality” in SZTOX was not, of itself, the reason for finding jurisdictional error. Rather, as the Full Court made clear, in my respectful view, this cast “serious doubt” on whether the Tribunal understood the proper meaning of “right” in s.36(3) of the Act. It was the Tribunal’s failure to otherwise demonstrate in its reasoning that it understood the current test that led to jurisdictional error. There is no legal error in the Tribunal’s decision in this regard.

Consideration: Consideration of Section 36(3) of the Act, in light of Section 36(2) of the Act.

  1. The second question for which leave was granted for further submissions was whether the Tribunal fell into error by considering s.36(3) of the Act without first deciding whether the applicant was owed protection pursuant to s.36(2) of the Act.

  2. In SZRTC v Minister for Immigration and Border Protection [2014] FCAFC 43 (“SZRTC”) the Court said (at [25] – [26] per Tracey and Griffiths JJ):

    “[25] 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 Refugee Convention are met, limit the operation of s 36(3) and keep the “gateway” open.

    [26] This is the context in which s 36(3) falls to be construed.”

  3. NBLC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 272; (2005) 149 FCR 151 (“NBLC”) is an earlier Full Court judgment which considered the issue of s.36(3) of the Act, in which Graham J stated (at [48]):

    “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.”

  4. In the same case, Bennet J stated (at [17]):

    “It can be seen that the subject of the section is the person, the applicant. It is not the case that the applicant simply needs to establish a well-founded fear in his or her country of nationality. The ‘gateway’, to adopt the language of Wilcox J, is a composite test that precedes the application of s 36(2). As the primary judge put it at [38], s 36(3) is a qualification of s 36(2) and s 36(4) is a qualification to that qualification.”

  5. Since commencing the drafting of reasons for judgment in this matter, the Federal Court has provided the answer on this question which is binding on this Court.

  6. In SZUDE v Minister for Immigration and Border Protection [2015] FCA 1202 (“SZUDE”), McKerracher J reviewed relevant authorities (NBLC per Wilcox, Graham and Bennett JJ, NBGM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 60 (“NBGM”) per Black CJ, SZSMG v Minister for Immigration & Anor [2014] FCCA 776 and SZTOX) and found no jurisdictional error in the Tribunal’s approach in relying on s.36(3) of the Act without making a concluding finding in relation to s.36(2) of the Act (see [58] of SZUDE).

  7. At [57], the Court in SZUDE stated:

    “The Tribunal has taken the correct approach. It has examined the factors going to s 36(2) of the Act and, while it preferred not to reach a determinative conclusion about whether or not obligations were owed under subs (2), was satisfied nevertheless that subs (3) precluded any obligations being owed. It would be wrong to ignore s 36(2) of the Act, as the issue under s 36(2) is the central issue to which s 36 is directed. But as Black CJ observed, it is difficult to see from a perspective of statutory construction why there would be no obligations by virtue of s 36(3). The Tribunal took a slightly different approach saying that it was, in effect, unnecessary to determine s 36(2) because even if obligations were owed under s 36(2), they were negated by virtue of s 36(3) of the Act. As a matter of statutory construction, it is difficult to see how the approach which commended itself to Black CJ could be erroneous. Certainly, it is not jurisdictional error, but in my view, it is no error at all to deal with s 36(3) (which is a deeming provision) on the hypothesis that s 36(2) would apply. Of course, if s 36(2) does not apply, there is no basis for consideration of s 36(3). There is some force in the Minister’s submission that it is highly improbable that Tracey and Griffiths JJ in their observations as to the correct approach in SZRTC, were expressly departing from the views expressed by Black CJ in NBGM, having just cited his Honour’s decision in that case.”

  8. The Tribunal in the current case has taken the same approach. For the reasons explained in SZUDE, no jurisdictional error arises in the current case. In the current case the applicant did not only claim to fear harm from Maoists in Nepal but also from Maoists, and others, in India. While a different Tribunal member may have chosen to proceed otherwise, it can reasonably be said that, in the circumstances, it was “economical and efficient” to proceed in the manner which the Tribunal employed. That is, the fear of harm in India. On that basis, no jurisdictional error arises in the Tribunal’s approach in this regard.

Consideration: The Grounds of the Application

  1. Despite the opportunity given to file an amended application, and to provide particulars to his grounds, the applicant relied on the grounds of the application as originally pleaded (see [10] above).

  2. What is meant by “no pure evidence” in ground one remained unexplained before the Court. The applicant’s submissions, at their highest, were to insist that he would be at risk if he were to “relocate” to India because he would be of adverse interest to the “Maoists and Indians”.

  3. In subsequent submissions, the applicant initially asked the Court to follow SZTOG & Ors v Minister for Immigration & Anor [2015] FCCA 180 and SZTQN v Minister for Immigration & Anor [2015] FCCA 188. The answer to the applicant’s submissions is to be found in the Full Court judgment in SZTOX (at [42]). In further submissions, he also asked that SZTOX be “applied” to his case, in relation to this I rely on what I have found above.

  4. Before the Tribunal, the applicant claimed that he feared persecution in India from an Indian communist group who had links with the Nepalese Maoists. The Tribunal understood that the applicant had made this claim ([28] at CB 100). In this light, the applicant’s submission that the Tribunal “overlooked” this claim cannot be accepted.

  5. As set out above, the Tribunal considered relevant country information and found that Nepalese Maoists like other Nepalese, can easily enter India ([29] at CB 100). It also found “reports” that confirmed the applicant’s “general comment that Nepalese and Indian left-wing groups have links” ([30] at CB 100). However, it found “no information to suggest that Nepalese (or Indian) Maoists target Nepali migrants in India” ([31] at CB 101).

  6. The Tribunal ultimately found that even if he was at risk from Maoists in Nepal (a conclusion which it otherwise rejected), any interest by the Maoists would not extend “beyond his village” ([32] at CB 101). The Tribunal gave reasons for this probative of what was before it. It gave no weight to the applicant’s evidence that Nepalese people in India were of interest to the Nepalese Maoists because it was “…concerned that the applicant was making this up as he went along, and in the absence of a more detailed, substantiated account”, the Tribunal placed no weight on the applicant’s statements in this regard ([31] at CB 101).

  7. As the Minister submitted, it is for the applicant to have made out his case before the Tribunal. It is not for the Tribunal to find rebutting evidence before rejecting his statement (Selvadurai v Minister for Immigration & Ethnic Affairs & Anor (1994) 34 ALD 347 and Mukto v Minister for Immigration & Multicultural Affairs [1999] FCA 1801). Ground one is not made out.

  8. To the extent that ground two asserts that the Tribunal should have had regard to the doctrine of “effective protection”, the ground is without merit given what is set out generally above and NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6; (2005) 222 CLR 161 and SZTOX at [32].

  9. For the remainder, it may be that the ground seeks to complain that the Tribunal fell into jurisdictional error because it failed to consider whether the applicant would have the benefit of meaningful protection in India due to what is said to be discrimination against Nepalis there, and a lack of legal rights. This was emphasised by the applicant in both of his supplementary written submissions after the hearing before the Court.

  10. It is to be remembered that, on the evidence before the Court in the Court Book, the applicant’s claim to fear harm in India was said to be at the hands of Nepalese Maoists and their allies in India. As set out above, the Tribunal dealt with this. It did not accept this claim. There is no evidence that the applicant claimed before the Tribunal, or the delegate, that he feared harm in India because of any discrimination or the inability of the Indian state to offer protection to him. As the Minister submitted, the Tribunal is only obliged to deal with claims expressly made or clearly arising (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; 144 FCR 1, Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630, Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389). Ground two is not made out.

  11. The applicant’s submissions did not explain ground three. If this is an attempt to complain that it was not open to the Tribunal to find adversely to his claims, or to view his evidence as lacking weight, or coming to conclusions of “disbelief”, then the ground is no more than an attack on the merits of factual findings made by the Tribunal, or the view it took, and weight it assigned to, his evidence. As set out above, the Tribunal’s relevant findings were reasonably open to it on what was before it. No jurisdictional error is revealed simply because the Tribunal disbelieves an applicant or assigned no weight to his evidence.

  12. If the ground seeks to invoke some allegation of bias, or the apprehension of bias, then such claims must be clearly made and distinctly proven (Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17 (2001) 205 CLR 507 at [69] and [127], see also SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425). The applicant has not addressed the former requirement, let alone provided evidence in relation to the second. Ground three is not made out.

Conclusion

  1. In all, none of the grounds of the application, or the other matters raised, reveal jurisdictional error in the Tribunal’s decision. The application should be dismissed. I will make an order accordingly.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  2 December 2015

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