SZUSI v Minister for Immigration
[2016] FCCA 2341
•14 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUSI v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2341 |
| Catchwords: MIGRATION – Judicial review of decision of Refugee Review Tribunal (Tribunal) – whether Tribunal correctly construed and applied s.36(3) of the Migration Act 1958 (Cth) – whether Tribunal failed to consider claim – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 36(3), 36(4), 36(5), 36(5A) |
| Cases cited: Minister for Immigration and Border Protection v SZUSU [2016] FCAFC 50 Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91; (2013) 215 FCR 35 NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6; (2004) 222 CLR 161 SZTOX v Minister for Immigration and Border Protection [2015] FCAFC 77 |
| Applicant: | SZUSI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1935 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 14 July 2015 |
| Date of Last Submission: | 23 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 14 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr J R Young |
| Solicitors for the Applicant: | G & S Law Group |
| Counsel for the Respondents: | Mr M Smith |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1935 of 2014
| SZUSI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This application for judicial review raises two principal questions. The first is whether the second respondent (Tribunal) made the same error as the Full Federal Court found the Tribunal made in SZTOX v Minister for Immigration and Border Protection.[1] The error related to the Tribunal’s construction of s.36(3) of the Migration Act 1958 (Cth) (Act). The second question is whether the Tribunal failed to address a particular aspect of the applicant’s evidence relating to fears he claimed he held if he were returned to India.
[1] [2015] FCAFC 77 (Allsop CJ, Jagot and Griffiths JJ)
To understand how the issues arise, it will be necessary to set out the applicant’s claims for protection, and the Tribunal’s reasons for not accepting those claims.
Claims for protection
The applicant is a national of Nepal. The applicant claimed he left Nepal because he feared for his life because he was harassed by Maoists.[2] He was threatened by Maoists because his father served on the Armed Police Force as a Deputy Inspector General.[3] The applicant’s father was involved in offensive missions which resulted in the deaths of many Maoists.[4]
[2] CB9
[3] CB9; CB11
[4] CB11
The applicant claimed he was severely beaten and left for dead by the Young Communist League (YCL) on his way home from college because of the applicant’s father’s involvement in the war against the Maoists.[5] The applicant was harassed and received numerous death threats from the Maoists.[6] He did not leave the house for several months, lived in fear, and even stopped attending university.[7] The YCL also attacked the police posts where the applicant’s father was stationed and many policemen died, but the YCL did not succeed in overtaking the posts.[8]
[5] CB10; CB34
[6] CB10
[7] CB10
[8] CB34
The applicant also claimed he volunteered in social riots against the Maoists’ brutality.[9] The applicant provided information to the police about Maoist guerrilla tactics and the YCL.[10] This led to the arrests of YCL leaders.[11] From then on the applicant received phone calls and was severely beaten and harassed each time he left the house to go to college.[12] The applicant fears death, torture, abuse, and daily harassment from the Maoists and the YCL. The applicant also fears he will be killed or kidnapped for revenge and ransom by Maoists and their various organisations if he goes back to Nepal.[13]
[9] CB9
[10] CB9; CB11
[11] CB11
[12] CB11
[13] CB35
The applicant said he does not believe the authorities in Nepal will be able to protect him because the Maoists are in power now and there are various Maoists in high positions.[14] Many of the applicant’s and the applicant’s father’s colleagues who served in the government forces were killed, abducted, tortured, and some went missing.[15] The applicant fears going to government officials for help because the Maoists have their men everywhere.[16] When the applicant was beaten by the Maoists the police could not help him because the police also fear the Maoists.[17]
[14] CB12
[15] CB12
[16] CB12
[17] CB12
Before the Tribunal
The applicant repeated the substance of his claims before the Tribunal. In addition, however, the applicant gave evidence in response to questions from the Tribunal about the possibility of his seeking protection in India. The applicant said he knew he did not need a visa to go to India, he had visited India from Nepal, and there was an open border; but India was not a friendly place.[18] In response to a question from the Tribunal about what harm he feared if he were to be sent to India, the applicant said there are Nepalese criminals and Maoists in India, Indians help the Nepalese Maoists there,[19] and there was racial discrimination in India.[20] The applicant said his main fear “was from the Maoists because of what he had done in the past and because of his father’s former role”.[21] The applicant also claimed he might be at risk of being kidnapped for ransom as that happened a lot in India and Nepal.[22]
[18] CB98, [44]
[19] CB99, [51]
[20] CB99, [51]
[21] CB99, [51]
[22] CB101, [59]
Tribunal’s reasons for decision
The Tribunal was of the view there were some issues that raised doubts about the credibility of the applicant’s claims. In particular, the Tribunal found the applicant’s delay in applying for a Protection visa called into question the applicant’s credibility. The Tribunal, however, did not find it necessary to reach conclusions under s.36(2)(a) or s.36(2)(aa) of the Act based on his claimed fear of returning to Nepal.[23] Instead, the Tribunal viewed the primary issue to be whether Australia does not owe protection obligations to the applicant because he has a right to reside in India within the meaning of s.36(3) of the Act. In that regard, the Tribunal was of the view that, in determining whether s.36(3) of the Act applied to the applicant, it had to consider the following matters:[24]
a)Whether, pursuant to s.36(3) of the Act, the applicant, a citizen of Nepal, has a right to enter and reside in India.
b)Whether, pursuant to s.36(4) of the Act, the applicant is at risk of Convention-related persecution or significant harm in India.
c)Whether, pursuant to s.36(5) and s.36(5A) of the Act, the Indian authorities might return the applicant to Nepal or another country where he is at risk of Convention-related persecution or significant harm.
d)If the applicant has a right to enter and reside in India, whether the applicant has taken all possible steps to avail himself of that right.
[23] CB96, [36]
[24] CB96-97, [38]
Whether the applicant has a right to enter and reside in India
The Tribunal began by referring to Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU,[25] noting that the Full Federal Court held that:[26]
the term “right” in s.36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather that it 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.
[25] [2013] FCAFC 91; (2013) 215 FCR 35 (Tracey, Buchanan, Flick, Robertson and Griffiths JJ)
[26] CB97, [39]
The Tribunal then referred to the Treaty of Peace of Friendship between India and Nepal 1950 (Treaty), noting that Articles 6 and 7 of the Treaty grants to Nepalese nationals in India and Indian nationals in Nepal “the same privileges in the matter of residence, ownership of property, participation of trade and commerce, movement and other privileges of a similar nature”;[27] but also noting that the Treaty grants no rights of entry.
[27] CB97, [40]
Next, the Tribunal referred to a 2013 Department of Foreign Affairs and Trade (DFAT) report which advised, among other things, that a citizen of Nepal entering India by land or air does not require a passport or visa for entry in India, but where a citizen of Nepal travels by air to India, the citizen is required to show any one of a number of specified identity documents, two of which may be a Nepalese passport and a Nepalese citizenship certificate, and that a citizen of Nepal must hold a passport when entering India from a place other than Nepal. The DFAT report also stated that a citizen of Nepal who possesses a valid Nepalese passport flying direct from Australia could gain entry in Nepal.[28] The Tribunal noted the DFAT report advised that “unlimited stay is granted to Nepalese nationals in India and there are no restrictions on their ability to remain, reside or work in India”, and the Tribunal referred to other reports that confirmed DFAT’s advice.[29]
[28] CB97-98, [42]
[29] CB98, [45]
The Tribunal concluded as follows (emphasis added):[30]
Taking into account the terms of the Treaty itself, the information from Indian and Australian authorities about the administrative arrangements concerning entry to India by Nepalese nationals and the country information and other commentary on the ability of Nepalese citizens to enter and reside in India, the Tribunal is satisfied . . .that, as a matter of practical reality, the applicant has a right to enter and reside in India.
[30] CB99, [47]
Whether there is a risk of Convention-related persecution or significant harm in India
The Tribunal noted there was some evidence of discrimination and hardship which may be faced by Nepalese migrants in India, but found no reports that Nepalese in India are subjected to routine or extensive mistreatment or harm.[31] The Tribunal did not accept that the treatment of Nepalese in India, or the fact of being Nepalese by itself, gives rise to a well-founded fear of persecution in India for a Convention reason or a real risk of significant harm in India.[32]
[31] CB99, [53]
[32] CB99, [53]
The Tribunal did not accept the applicant was at risk in India because of his father’s former position as a Deputy Inspector General with the Armed Police Force in Nepal.[33] The Tribunal found no information indicating that Nepalese or Indian Maoists target Nepalese migrants in India.[34] The Tribunal found there was not a real chance that the applicant will be persecuted in India now or in the reasonably foreseeable future,[35] or that there were not substantial grounds for believing there is a real risk the applicant will suffer significant harm at the hands of Maoist groups or their surrogates either because of his past activities or his father’s role in the Armed Police Force.[36]
[33] CB100, [55]
[34] CB100, [56]
[35] CB100, [58]
[36] CB100, [58]
The Tribunal accepted there are criminal gangs in India and accepted it was plausible that the gangs kidnap people for ransom.[37] The Tribunal, however, did not accept the applicant had a profile to stand out as a target for ransom, and for that reason found there was not a real risk the applicant would suffer significant harm at the hands of criminal gangs.[38]
Whether the Indian authorities might return the applicant to Nepal or another country where he is at risk
[37] CB101, [60]
[38] CB101, [60]
The Tribunal relied on DFAT advice that Nepalese nationals in India can be forcibly removed if convicted of a crime in either Nepal or India[39] in concluding that criminal activity is the sole reason the authorities in India would return a Nepalese national to Nepal.[40] On the basis of this finding, and the applicant’s evidence that he was not convicted of any crimes,[41] the Tribunal was not satisfied the applicant had a well-founded fear of being returned from India to Nepal.[42] The Tribunal did not consider it necessary to assess whether the applicant would be subject to a real chance of persecution or real risk of significant harm in Nepal.[43]
Whether the applicant has taken all possible steps to avail himself of his right to enter and reside in India
[39] CB101, [62]
[40] CB101, [63]
[41] CB101, [63]
[42] CB101, [64]
[43] CB101, [65]
The Tribunal was satisfied that the applicant had a right to enter and reside in India, but found the applicant had “not in fact taken any steps to avail himself of his right”.[44] On this basis, the Tribunal concluded Australia did not have protection obligations in respect of the applicant.
[44] CB102, [66]
Grounds of application
The applicant raised four grounds in support of his application for judicial review, but relies only on the third and fourth grounds.
Ground 3
Ground 3 is as follows:
The Second Respondent made jurisdictional error by misconstruing the effect and construction of s 36(3) of the Act and s 36 generally in relation to third Countries.
The applicant submits the Tribunal’s use of the expression “practical reality” in the passage I have quoted in paragraph 12 of these reasons demonstrates the Tribunal misconstrued s.36(3) of the Act. In particular, the applicant submits the Tribunal’s use of those words indicates the Tribunal applied the now discarded doctrine of effective protection. The applicant relies on SZTOX.[45] The Minister, on the other hand, submits the Tribunal’s decision in the case before me is distinguishable from what the Tribunal did in SZTOX. The Minister particularly relies on the Tribunal in the case before me having specifically referred to SZRHU, and to having correctly stated the effect of what the Full Federal Court held in SZRHU.[46] That is to be contrasted with SZTOX where the Tribunal did not refer to SZRHU.
[45] [2015] FCAFC 77
[46] [2013] FCAFC 91; (2013) 215 FCR 35
The competing submissions must be assessed by reference to the decision of the Full Federal Court in Minister for Immigration and Border Protection v SZUSU that was handed down after I heard the application.[47] In SZUSU the Tribunal expressed its conclusion that the applicant in that case had the right to enter India using the same words as the Tribunal in the case before me used to conclude the applicant has the right to enter India. That includes the words “as a practical matter”. The Full Federal Court held that, notwithstanding the use of these words, the Tribunal did not apply an incorrect construction of s.36(3) of the Act. Unlike the Tribunal in SZTOX, the Full Federal Court said, the Tribunal in SZUSU not only referred to SZRHU; it also demonstrated it correctly understood the relevant principles. The Full Federal Court further held that, although the Tribunal’s use of the expression “as a matter of practical reality” was “unfortunate”, that “was no more than an instance of “looseness in language” or “unhappy phrasing”, with which a court should not be concerned”.[48]
[47] (Tracey, Flick and Katzmann JJ)
[48] [2016] FCAFC 50 at [41]
In written submissions filed on 17 August 2016 (applicant’s supplementary submissions), the applicant accepted this Court is bound by the Full Federal Court’s decision in SZUSU.[49] The applicant formally submitted, however, that SZUSU has been incorrectly decided because it reintroduces into s.36(3) of the Act the notion of effective protection which the High Court rejected in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs.[50] The applicant also submits that the Full Federal Court confused evidence that was before the Tribunal with the legal test which ought to have been applied to that evidence.
[49] These submissions were provided to me after I reserved judgment. The Minister filed submissions in response. The parties agreed that I could address these additional submissions without any further hearing. I have decided it is appropriate that I do so.
[50] [2005] HCA 6; (2004) 222 CLR 161
The passage from the Tribunal’s decision on which the applicant relies as manifesting an erroneous construction of s.36(3) of the Act is the same as the passage in SZUSU the Full Federal Court held did not manifest an erroneous construction by the Tribunal in that case. To that extent, therefore, the Tribunal in the case before me has not made a jurisdictional error. In the applicant’s supplementary submissions, however, the applicant submits that SZUSU does not affect two other jurisdictional errors the applicant submits the Tribunal made.
The first is that the Tribunal did not go beyond making a finding that, as a matter of practical reality, the applicant had a right to enter and reside in India. That discloses jurisdictional error, the applicant submits, because s.36(3) of the Act requires a finding that the non-citizen has not taken all possible steps to avail himself or herself of the right.
The applicant accepts the Tribunal expressly concluded the applicant has not taken all possible steps to avail himself of that right. The applicant also accepts that, during the hearing, the Tribunal asked the applicant if he had availed himself of the right to enter India. That the Tribunal did so is apparent from the following passage from the Tribunal’s reasons for decision:[51]
I asked if the applicant had availed himself of the right to enter and reside in India. The applicant said he knew that he did not need a visa to go to India and he had visited India from Nepal. He said there was an open border. The applicant said that India was not a friendly place.
[51] CB98, [44]
The applicant submits, however, that the Tribunal’s finding the applicant has not taken all possible steps to avail himself of that right is a “conclusory statement only”.[52] During the hearing, counsel for the applicant submitted the finding was made in a “wrap it up section” of the Tribunal’s reasons.[53] Counsel also submitted the Tribunal’s finding was not “a finding as such in relation to the evidence”.[54] By these submissions, I understand the applicant to submit the Tribunal did not consider, or at least it did not properly consider, whether the applicant had taken all possible steps to avail himself of his right to enter India.
[52] Applicant’s Written Submissions, 01.07.2015, [14]
[53] T6.25
[54] T6.40
I do not accept these submissions. That the Tribunal asked the applicant questions about whether he availed himself of the right to enter India indicates the Tribunal was aware it had to consider whether the applicant had taken steps to avail himself of the right to enter India; and that the Tribunal expressly decided the applicant did not take such steps indicates the Tribunal considered the claim. Further, given the applicant informed the Tribunal that he knew he did not need a visa to enter India, and that he had visited India from the Nepal in the past, and that these matters are capable of supporting a finding that the applicant had not taken all possible steps to avail himself of the right to enter India, I infer the Tribunal did take into account the evidence the applicant gave in answer to the Tribunal’s questions about whether he had availed himself of the right to enter India.
The second jurisdictional error the applicant submits the Tribunal made is that it prejudged the issue whether the applicant had a right to enter India. The applicant relies on the following passages from the Tribunal’s reasons for decision:[55]
[43] The applicant has a Nepalese passport valid until 9 August 2015. At the hearing I told the applicant that I had to consider whether or not he had availed himself of his right to enter and reside in India. I said that it was important that he understood that the law as it now stands meant that Australia did not have protection obligations if someone had a right to enter and reside in a third country but had chosen to apply for . . . protection in Australia.
[44] I asked if the applicant had availed himself of the right to enter and reside in India. The applicant said he knew that he did not need a visa to go to India and he had visited India from Nepal. He said there was an open border. The applicant said that India was not a friendly place.
[55] CB98; [43]-[44]
The basis of the applicant’s submission that the Tribunal prejudged the question of the applicant’s right to enter India appears to be that the question whether the applicant had availed himself of that right presupposes he had a right to enter India. As a matter of logic, that is correct. The Tribunal’s question, however, must be seen in context. The Tribunal informed the applicant that one of the matters it had to consider was whether the applicant had the right to enter India. That indicates the Tribunal had not already determined that question adversely to the applicant. When considered against this, the Tribunal’s question about whether the Tribunal had availed himself of any right to enter India could only reasonably be seen as one that was based on the unassessed assumption that the applicant did have a right to enter India. I do not, therefore, accept the Tribunal prejudged the question of whether the applicant had a right to enter India.
Ground 3, therefore, fails.
Ground 4
Ground 4 is as follows:
The Second Respondent made jurisdictional error by misconstruing the evidence of the applicant on the subject of entering and remaining in India.
a. The Applicant claimed that there were links between the Maoists in Indian [sic] and the Maoists in Nepal and therefore there was a risk of harm in India or refoulement to Nepal. The Tribunal failed to effectively deal with the real risk of harm claimed by the Applicant and could therefore not complete its task of reviewing this [sic] risks in India without first dealing with the Applicants [sic] claims.
In his written submissions, the applicant submits the applicant claimed there was a link between Indian Maoists and Maoists who might cross the border into Nepal. Although the Tribunal found there was no information to indicate that Indian Maoists targeted Nepalese migrants in India, the Tribunal, the applicant submits, did not “deal with the claim that Indian Maoists might harm the Applicant because he was perceived to be an enemy of Nepalese Maoists”.[56]
[56] Applicant’s Written Submissions, 1.07.2015, [18]
The first question is whether the applicant did claim that Indian Maoists might harm him because he was perceived to be an enemy of Nepalese Maoists. That turns on the following passage from the Tribunal’s reasons (emphasis added):[57]
I asked what harmed [sic] he feared for a Convention reason in India. The applicant said that there were a lot of Nepalese criminals and Maoists in India. He said that the Indians also helped the Nepalese Maoists there. There was also racial discrimination. His main fear was from the Maoists because of what he had done in the past and because of his father’s former role.
[57] CB99, [51]
In my opinion, the applicant cannot reasonably be taken to have claimed he feared harm specifically from the Indian Maoists because he was perceived to be an enemy of the Nepalese Maoists. First, although the applicant referred both to Indian and to Nepalese Maoists, what he claimed to be his main fear was “the Maoists”. Second, the only reasons the applicant gave for fearing the Maoists in India was what he had done in the past, and his father’s former role. In other words, the only conceivable reasons for which the applicant could be considered to have claimed he feared Maoists in India relate to what the applicant did in Nepal. In those circumstances, it is unlikely that the applicant could have been taken to claim to fear harm from the Indian Maoists acting independently of the Nepalese Maoists, or for reasons unconnected with the perceptions the applicant claimed the Nepalese Maoists had of the applicant. The only basis on which the applicant could conceivably have claimed he feared harm from Indian Maoists is by the Indian Maoists acting on the instructions or at the behest of Nepalese Maoists because of a desire by the Nepalese to harm the applicant. The applicant did not claim he would do anything in India, or anything would occur in India, that would lead to him to fear that the Indian Maoists would harm him.
In any event, even if the applicant can reasonably be said to have claimed that he specifically feared Indian Maoists because he was perceived to be an enemy of the Nepalese Maoists, I am satisfied the Tribunal considered that claim. In paragraph 58 of its reasons for decision, the Tribunal noted “the applicant’s claims about the presence of Maoist groups in India and the relationship between those groups and Nepalese groups”;[58] it acknowledged there have been links between the two groups; it gave weight to there being no evidence that indicates Nepalese Maoists cross the border to pursue, identify and target persons; and concluded that the risk of harm to the applicant in India from Maoist groups based in Nepal is far-fetched, remote, and insubstantial. The Tribunal then concluded as follows (emphasis added):
On the basis of all . . . the evidence before me, I find there is not a real chance that the applicant will be persecuted now or in the reasonably foreseeable future for reason of Convention ground, and that his fear of persecution in India is not well-founded. For the same reasons I find there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he . . . will suffer significant harm at the hands of Maoist groups or their surrogates, either on his own account or because of his father’s former role as a senior police officer in Nepal.
[58] CB100, [58]
The Tribunal’s use of the word “Maoists groups” in the context of a paragraph in which the Tribunal distinguishes between Maoists in Nepal and Maoists in India satisfies me that the Tribunal’s findings were directed to all and any group that was Maoist, whether in India or in Nepal.
Ground 4, therefore, also fails.
Disposition
I propose to order that the application be dismissed. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 14 September 2016
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