SZUWS v Minister for Immigration
[2016] FCCA 1093
•9 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUWS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1093 |
| Catchwords: MIGRATION – Review of former Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Nepal – Tribunal finding that the applicant could find safety in India – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.36 |
| Cases cited: MZZXS v Minister for Immigration [2015] FCA 1384 NBGM v Minister for Immigration (2006) 150 FCR 522 SZRTC v Minister for Immigration (2014) 224 FCR 570 SZRUI v Minister for Immigration [2013] FCAFC 80 SZRUT v Minister for Immigration for Immigration& Anor [2015] FCCA 263 SZSMG v Minister for Immigration & Anor [2014] FCCA 776 Webb v R (1994) 181 CLR 41 |
| Applicant: | SZUWS |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2186 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 9 May 2016 |
| Delivered at: | Sydney |
| Delivered on: | 9 May 2016 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms H Musgrove of Sparke Helmore |
ORDERS
The name of the second respondent be amended to the “Administrative Appeals Tribunal”.
The application filed, 5 August 2014, is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2186 of 2014
| SZUWS |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The decision was made on 3 July 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The background facts relating to this matter are set out in the Minister’s outline of submissions filed on 2 May 2016.
Background
The applicant, a citizen of Nepal, arrived in Australia most recently on 20 August 2012.[1] On 26 April 2013, the applicant applied for a protection (class XA) visa.[2] The applicant made the following claims in support of his visa application:[3]
a)the applicant was badly hurt during a gang fight with a neighbouring village; one person from the other side was killed; the neighbouring village was looking for revenge; the applicant might be hurt or killed;
b)a political party demanded illegal donations; he feared that if he did not provide a donation they “give threatening of taking life”;
c)there is no Constitution in Nepal; corruption and bribery is everywhere; politicians and police “do corruption”; they can’t protect the country, “how they will protect me?;”
d)there is fighting with the neighbouring village for water; there is no police or security; “always threat for life”;
e)there are no medical facilities for the applicant’s sick parents;
f)there is no job opportunity.
[1] Court Book (“CB”) 46
[2] CB 1
[3] CB 18-21; CB 67 at [6]-[10]
On 16 December 2013, a delegate of the Minister (delegate) refused to grant the protection visa.[4] On 14 January 2014, the applicant applied to the Tribunal for review of the delegate’s decision.[5]
[4] CB 51
[5] CB 52
On 24 June 2014, the applicant appeared before the Tribunal to give evidence and present arguments[6] and, on 3 July 2014, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.[7]
[6] CB 64
[7] CB 66
Tribunal’s findings
The Tribunal found that while there were issues which raised doubts about the credibility of the applicant’s claims, it was not necessary to reach conclusions about whether Australia had protection obligations towards the applicant pursuant to s.36(2) of the Migration Act 1958 (Cth) (Migration Act) because of the availability to the applicant of safe third country protection pursuant to s.36(3) of the Migration Act.[8]
[8] CB 70 at [26]
The Tribunal considered whether the applicant had a right to enter or reside in India, and whether he had taken all possible steps to avail himself of that right.[9] The Tribunal considered the decision of the Full Federal Court in Minister for Immigration v SZRHU,[10] which held that the term “right” in s.36(3) should not be restricted to a legally enforceable right, but should include a liberty, permission or privilege lawfully given.[11]
[9] CB 68-67 at [17]
[10] [2013] FCAFC 91
[11] CB 71 at [29]
The Tribunal went on to consider the Treaty of Peace and Friendship between India and Nepal 1950 (Treaty), Article 7 of which grants Nepalese nationals 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”.[12] Because the Treaty does not deal with the rights of Nepalese nationals to enter India,[13] the Tribunal also considered country information, which indicated that the applicant, who had a Nepalese passport, could gain entry to India flying direct from Australia.[14] The Tribunal was satisfied, “as a matter of practical reality,” that the applicant had a right to enter and reside in India.[15]
[12] CB 71 at [30]
[13] CB 71 at [31]
[14] CB 71-72 at [32]-[33]
[15] CB 73 at [37]
The Tribunal considered whether the applicant had a well-founded fear of persecution or a real risk of significant harm in India.[16] In this respect, the applicant made the following claims on the basis of his imputed political opinion:
a)there were Maoists in India;[17] Maoists would want him to support and join them;[18]
b)Maoists from the neighbouring village in Nepal would find him in India; there might be a chance encounter and he would not be safe as a result;[19] and
c)Nepalese Maoists would attack him.[20]
[16] Migration Act s.36(4)
[17] CB 72 at [34]
[18] CB 73 at [42]
[19] CB 73-74 at [42]
[20] CB 74 at [43]
Having considered country information,[21] the Tribunal did not accept that the applicant would be targeted by Maoists in India for any reason.[22] The Tribunal was satisfied that the risk to the applicant in India from Maoist groups for reason of his imputed political opinion was “far-fetched, remote and insubstantial,” and that there was not a real chance the applicant would be persecuted in India for reason of his imputed political opinion.[23]
[21] CB 74 at [44]-[46]
[22] CB 74 at [45]
[23] CB 74 at [47]; Chan v Minister for Immigration (1989) 169 CLR 379
The Tribunal also considered further claims made by the applicant in relation to the risk of harm in India, including the risk of harm to Nepalese nationals,[24] the general security situation in India and the lack of support from the Indian government,[25] and high levels of crime.[26]
[24] CB 72 at [34]
[25] CB 75 at [48]
[26] CB 75 at [50]
The Tribunal accepted the country information that there were no reports of Nepalese living in India being systematically targeted for any reason.[27] The Tribunal found no reports that Nepalese in India were the subject of routine or extensive mistreatment or harm, and taking the country information as a whole, the Tribunal did not accept that the mere fact of being a Nepalese in India gave rise to a real chance of serious harm.[28] Nor did the Tribunal accept that not having access to a ration card amounted to persecution for a Convention reason.[29] The Tribunal concluded that there was not a real chance the applicant would be persecuted in India for a Convention reason.[30]
[27] CB 75 at [51]
[28] CB 75 at [52]
[29] CB 75 at [49]
[30]CB 75 at [53], [64]
The Tribunal went on to consider the complementary protection criterion. On the basis of its earlier findings, the Tribunal was not satisfied that there was a real risk the applicant would suffer significant harm in India at the hands of Maoist groups based in Nepal because he failed to comply with their extortion demands in the past.[31] The Tribunal also did not accept that the mere fact of being a Nepalese in India gave rise to a real risk of significant harm. The Tribunal was not satisfied that there was a real risk the applicant would suffer significant harm in India because of any societal discrimination against Nepalese people in India.[32]
[31]CB 75 at [54]
[32]CB 75-76 at [55], [64]
Finally, the Tribunal considered whether the applicant had a well-founded fear that India would return him to Nepal or a third country.[33] On the basis of country information and the applicant’s evidence at the hearing that he had not been convicted of any crime,[34] the Tribunal was not satisfied that the applicant had a well-founded fear India would return him to Nepal or any other country.
[33] CB 76 at [57] ; Migration Act ss.36(5) and (5A)
[34]CB 76 at [58]-[59]
At the hearing, the Tribunal asked the applicant what steps he had taken to avail himself of the right to enter and reside in India. The applicant said that he had not tried living in India, but had tried Australia instead, and that Australia was a better place to live.[35] The Tribunal was satisfied that the applicant had a right to enter and reside in India, and was not subject to the qualifications in ss.36(4), (5) or (5A) of the Migration Act. The Tribunal concluded that the applicant had not taken any steps to avail himself of that right.[36]
[35]CB 72 at [34]
[36]CB 77 at [62]-[63]
The Tribunal therefore considered it unnecessary for it to assess whether the applicant would be subject to a real chance of persecution, or a real risk of suffering significant harm in Nepal.[37]
[37]CB 76 at [60]-[61], [64]
Current proceedings
These proceedings began with a show cause application filed on 5 August 2014. There are three grounds in that application which the Minister refines into five issues:
1.The Tribunal was incorrect in finding that the applicant would not be harmed in India. In particular, the Tribunal was not aware that the ration card is only given to Indian citizens, not Nepalese citizens.
2.The applicant was “misled and made nervous” by the Tribunal, and the Tribunal asked “irrelevant questions.”
3.The Tribunal erred in considering whether the applicant would be harmed in India, rather than whether he would be harmed in Nepal, the applicant’s “own country where I claimed to be harmed.”
4.In finding that the applicant had a right to enter or reside in India, the “Tribunal committed an apprehended biasness.”
5.The Tribunal erred in considering the applicant’s evidence that he had not been convicted of any crime in considering whether India would return him to Nepal.
The application is supported by an affidavit filed with it which I received. I also received, subject to relevance, a second affidavit by the applicant made on 20 October 2014. Annexed to that affidavit is a purported transcript of the hearing conducted by the Tribunal.
I also have before me as evidence the court book filed on 26 September 2014.
This matter came before me for a show cause hearing on 30 April 2015. At that time I ordered the Minister to show cause, pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), why relief should not be granted in relation to the issue dealt with in SZUDE v the Minister for Immigration (SZUDE).[38]
[38] (2015) FCCA 60
The issue, in my view, arose from the third element of the applicant’s claims, namely, that the Tribunal erred in considering whether he would be harmed in India rather than whether he would be harmed in Nepal, the applicant’s own country where he claimed to be harmed.
As is explained in the Minister’s submissions, the issue in SZUDE has been resolved on appeal in the Federal Court. In essence, it is not a jurisdictional error for the Tribunal to consider the application of the safe third country principle without deciding whether a refugee applicant has a well-founded fear of persecution in their country of origin.
I agree with the Minister’s submissions on that issue.
SZUDE v Minister for Immigration & Anor [2015] FCCA 60
On 20 March 2015, this Court delivered judgment in SZUDE at first instance. In that decision, I opined at [48] that there was “a strong argument that the power to determine whether a protection visa applicant can find safety in a third country is not enlivened in the absence of a determination that the person has a well-founded fear of harm in their country of reference.”
At [50] of that decision, I considered the earlier decisions in SZRUT v Minister for Immigration for Immigration & Anor[39] (SZRUT) and SZSMG v Minister for Immigration & Anor[40] (SZSMG) which addressed the same issue. In SZRUT, the Court had found that there was no legal error in this approach, and that any error was an error within jurisdiction and, in SZSMG, the Court found that the error did not go to jurisdiction.
[39] [2015] FCCA 263
[40] [2014] FCCA 776
I held at [51] of the decision in SZUDE that I should follow these decisions “in the interests of comity,” and the issue was resolved against the applicant.
SZUDE v Minister for Immigration [2015] FCA 1202
On 10 November 2015, McKerracher J delivered judgment in the appeal in SZUDE. His Honour considered the argument concerning my conclusion “that there was an error (but not a jurisdictional error) in the approach taken by the Tribunal in not making a determination under s.36(2) of the Migration Act before moving to consider the provisions which followed.”[41]
[41] at [21]
His Honour at [27] considered the reasons of Black CJ in NBGM v Minister for Immigration [42] (NBGM) at [20]:
As a final matter of construction, I see no requirement for a decision-maker to be satisfied as to whether or not Australia has “protection obligations” pursuant to s 36(2) before considering the qualification in s 36(3). In an appropriate case, it may indeed be proper for a decision-maker to consider first whether or not Australia is taken not to have protection obligations to the applicant by reason of the operation of s 36(3) (see NBLC at [48] (Graham J)). Such an approach finds a parallel in the permissible approach to Art 1 of the Convention: NAGV and NAGW of 2002 (High Court) at [47]. (Emphasis added)
[42] (2006) 150 FCR 522
His Honour at [31] accepted the Minister’s submission that “the fact that the Tribunal does not follow the ‘correct’ procedure set out in SZRTC, does not necessarily result in the Tribunal having made an error within jurisdiction as there may be other permissible approaches as acknowledged by Black CJ in NBGM.”
His Honour further held[43] that the analysis by the Full Court in SZRTC v Minister for Immigration[44] did not conflict with the process of construction described by Black CJ in NBGM:
In SZRTC, the Full Court … held that an appellant’s ability to enter into and remain in another country for six months was a ‘right to enter and reside’ for the purpose of s 36(3) of the Act and in that case the Tribunal had erred by importing temporal considerations relating to protection obligations in s 36(3) of the Act which did not require a period of residence commensurate with a period of time during which a fear of prosecution is likely to continue …
It was not central to the decision reached by their Honours in SZRTC that a decision be made in relation to s 36(2) of the Act before considering s 36(3) … in my view, nothing in the observations by their Honours dictates that a decision must be made under s 36(2) of the Act before turning to s 36(3) …
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.
[43] at [54], [56]-[57]
[44] (2014) 224 FCR 570
In the present case, the Tribunal found that it was not necessary to reach conclusions about whether Australia had protection obligations towards the applicant under s.36(2) of the Migration Act because of the availability to the applicant of safe third country protection, pursuant to s.36(3) of the Migration Act. In the Minister’s respectful submission, the Tribunal’s application of s.36(3) of the Migration Act was in line with the process of construction approved by McKerracher J in SZUDE.
The Minister’s submissions deal appropriately with the remaining grounds or issues of review raised by the applicant.
In substance, the applicant’s first ground seeks impermissible merits review.[45] The applicant has not particularised why the Tribunal was incorrect in any manner that might constitute jurisdictional error. As for the issue of the ration card, the Tribunal considered country information which indicated that the ration card entitlement did not extend to all Indian citizens as it was subject to a means test. The Tribunal considered the applicant’s claim that poor Nepalese in India were not eligible for the ration card, but did not accept that not having access to a ration card amounted to persecution.[46] As such, no error is revealed in the Tribunal’s findings in respect of the ration card.
[45] Minister for Immigration v Wu Shang Liang (1996) 185 CLR 259 at 272
[46] CB 75 at [49]
The second ground advanced by the applicant is that he was “misled and made nervous” by the Tribunal, and that the Tribunal asked “irrelevant questions.” This ground is unparticularised. There is nothing in the evidence before the Court, including in the transcript attached to the affidavit of the applicant affirmed on 20 October 2014, to suggest that the applicant was denied a fair hearing pursuant to s.425 of the Migration Act, or that the Tribunal’s decision was otherwise affected by procedural unfairness.
The applicant’s fourth ground that the Tribunal’s decision is affected by apprehended bias is unsubstantiated. The relevant circumstances, including the Tribunal’s application of s.36(3) and the conduct of the Tribunal hearing, are not such that a fair-minded and informed person might reasonably apprehend that the decision maker might not have brought an impartial mind to bear on the decision.[47]
[47] Webb v R (1994) 181 CLR 41 at 70-71; SZRUI v Minister for Immigration [2013] FCAFC 80
Finally, the applicant contends, in the fifth ground, that the Tribunal erred in considering his (lack of) criminal history. The Tribunal considered advice from DFAT, which identified criminal activity as the sole reason that the authorities in India would return an Indian-resident Nepalese national to Nepal.[48] It was in this context that the Tribunal considered the applicant’s evidence that he had not been convicted of any crime. The Tribunal also found that there was no suggestion before it that the applicant would engage in criminal activity in the future. On the basis of this evidence, the Tribunal was not satisfied that the applicant had a well-founded fear that India would return him to Nepal. This finding was open to the Tribunal on the material before it.[49]
[48] CB 76 at [59]
[49] Kopalapillai v Minister for Immigration (1998) 86 FCR 547
The Minister’s submissions raise a further issue arising from the case of Minister for Immigration v SZUSU (SZUSU).[50] That issue was dealt with by the Full Federal Court earlier this year. In my view, this case is indistinguishable from SZUSU. I agree with the Minister’s submissions.
[50] [2016] FCAFC 50
Minister for Immigration v SZUSU [2016] FCAFC 50
The Tribunal decision presently under review contains a passage at [37] identical to that under consideration in SZUSU at [50] (and in SZUYA v Minister for Immigration & Anor[51]):
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 that [sic], as a matter of practical reality, the applicant has a right to enter and reside in India.
[51] [2015] FCCA 2315 at [47]
In considering this passage in SZUSU at [19], Tracey, Flick and Katzmann JJ rejected the proposition that “despite anything said elsewhere in the Tribunal’s reasons to suggest otherwise, the use of the expression “as a matter of practical reality” necessarily meant that the Tribunal did not understand or apply the correct test.” The recent decision in SZUSU confirms that no error arises simply from the Tribunal’s use of the words “as a matter of practical reality.” It is clear that the Tribunal understood 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.”
Notably, the Tribunal decision in the present case included passages[52] identical to those relied on by the Full Federal Court in SZUSU in finding that “the Tribunal understood the principles in SZRHU and was applying them.”[53]
[52] at [30]-[32], [35]
[53] Minister for Immigration v SZUSU [2016] FCAFC 50 at [21], [23], [25]-[26], [31]-[32]
The Tribunal’s demonstrated understanding of the principles in SZRHU and its analysis of the country information in light of those principles distinguishes it from MZZXS v Minister for Immigration[54] and SZTOX v Minister for Immigration[55]: see SZUSU at [36]-[37].
[54] [2015] FCA 1384
[55] [2015] FCAFC 77
I conclude that the applicant has been unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. It follows that the decision is a privative clause decision and the application must be dismissed. I will so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale as it applied at the time the application was filed. The applicant did not wish to be heard on costs.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,646.
I will, in addition, order that the name of the second respondent be amended to the “Administrative Appeals Tribunal”.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 13 May 2016
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