SZVGQ v Minister for Immigration
[2018] FCCA 597
•5 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVGQ v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 597 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in India as a homosexual – applicant’s fear well-founded but the Tribunal found the applicant failed to avail himself of a right to enter and reside in Nepal – whether the Tribunal misapplied s.36(3) of the Migration Act 1958 (Cth) considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 424A |
| Cases cited: Minister for Immigration v SZRHU [2013] FCAFC 91; (2013) 215 FCR 35 Minister for Immigration v SZUSU [2016] FCAFC 50; (2016) 237 FCR 305 MZZXS v Minister for Immigration [2015] FCA 1384 NBLC v Minister for Immigration (2005) 149 FCR 151 SZNBX & Ors v Minister for Immigration & Anor [2018] FCCA 445 SZMWQ v Minister for Immigration (2010) 187 FCR 109 |
| Applicant: | SZVGQ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2601 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 13 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 5 April 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones of Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application as amended on 28 September 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2601 of 2016
| SZVGQ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 26 August 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of the Republic of India who arrived in Australia on a student visa in July 2006.[1]
[1] Court Book (CB) 377 [1]
On 3 April 2013, the applicant applied for the protection visa.[2] He claimed to fear harm in India because he is homosexual. On 16 December 2013, the delegate refused the visa.[3]
[2] CB 1-43
[3] CB 174-188
On 19 December 2013, the applicant applied to the then Refugee Review Tribunal (RRT) for review of the delegate’s decision.[4] On 18 September 2014, the RRT affirmed the delegate’s decision.[5] The RRT found that the applicant was not a witness of truth and did not accept that he was homosexual.
[4] CB 193-198
[5] CB 261-276
On 13 October 2014 the applicant applied for judicial review of the RRT’s decision in this Court. On 15 February 2016 I remitted the matter to the Tribunal,[6] finding that the RRT had breached s.424A of the Migration Act 1958 (Migration Act) by failing to invite the applicant to comment on adverse information given by a witness at the hearing.
[6] SZVGQ v Minister for Immigration & Anor [2016] FCCA 73
The applicant was invited to, and attended, a hearing before the Tribunal (differently constituted) on 7 July 2016, along with his representative.
On 26 August 2016, the Tribunal affirmed the delegate’s decision. By contrast with the RRT, despite some doubts, the Tribunal gave the applicant the benefit of the doubt and accepted that he was homosexual and that he faced a real chance of serious harm in India for that reason.[7] Hence, the Tribunal was satisfied that the applicant satisfied the criterion set out in s.36(2)(a) of the Migration Act.
[7] CB 390 [61], CB 395 [80]
However, in considering s.36(3) of the Migration Act, the Tribunal found that as an Indian citizen with a valid passport, the applicant had the right to enter and reside in Nepal[8] and relied upon extensive country information to find that the applicant would not face a real chance of persecution for reason of his homosexuality in Nepal.[9]
[8] CB 398-399 [90]
[9] CB 404-405 [110]
In finding that the applicant had the right to enter and reside in Nepal, the Tribunal considered submissions advanced by the applicant that the country information did not provide that an Indian national who is deported to Nepal would be allowed to enter, but found that the submissions had no relevance, as there was no indication that the applicant would be subject to a “deportation” order from Australia to Nepal.[10] The Tribunal considered ss.36(4), (5) and (5A) of the Migration Act and found that they did not apply to the applicant.[11]
[10] CB 298 [89]
[11] CB 399-409 [91]-[124]
Therefore, the Tribunal found that Australia did not have protection obligations towards the applicant.[12]
[12] CB 409 [125]
The current proceedings
These proceedings commenced with a show cause application lodged on 23 September 2016. The applicant now relies upon a further amended application filed on 28 September 2017. That application contains the following grounds and particulars:
1. The Tribunal erred in the manner in which it applied s36(3) of the Migration Act 1958.
Particulars
(a) The Tribunal considered evidence relating to the entry into Nepal of Indian citizens direct from India. It failed to appreciate that the Applicant would have to enter from a third country, and failed to consider whether in those circumstances s36(3) of the Act would apply to him.
(b) The Tribunal erred by assuming that the term “deported” in the Immigration Manual of Nepal had the same restricted meaning as in the Migration Act 1958, and further confused the term with extradition. The Tribunal failed to consider whether the distinction between “removal” and “deportation” in Australian law may not be the same in the law of Nepal, and therefore whether the Applicant might be treated as having been deported from Australia.
(c) The Tribunal denied procedural fairness to the Applicant.
Particulars
The Tribunal was given two or more documents purporting to be certificates made under s438 of the Migration Act 1958 in relation to certain documents.
Regardless of the validity of either or both of those certificates, procedural fairness required the Tribunal to do the following:
(i) disclose the existence of the certificates to the Applicant;
(ii) give the applicant an opportunity to make submissions on the validity of the certificates;
(iii) disclose at least whether the information covered by the certificates was favourable, unfavourable or neutral to the applicant, and the extent to which the Tribunal was going to take into account that information; and
(iv) consider whether any of the information came within the scope of s424A(1) or 424AA(1);
(v) give the applicant an opportunity to seek a favourable exercise of the Tribunal's discretion under s438(3)(b).
The Tribunal failed to do any of the above.
The third particular (in reality, a separate ground) was not pressed.
I have before me as evidence the book of relevant documents (court book) filed on 29 November 2016. An affidavit filed on behalf of the applicant on 11 January 2017, to which was annexed a transcript of the Tribunal hearing conducted on 7 July 2016, was not read.
Both the applicant and the Minister filed written submissions prior to the trial of this matter on 13 March 2018 and made oral submissions through their representatives at the trial. I have been assisted by those submissions.
Consideration
Applicant’s contentions
The decision of the Tribunal is challenged on the ground that the Tribunal erred in the way it applied s.36(3) of the Migration Act:
(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.
Two separate elements of this asserted error are referred to.
Entry to Nepal from a third country
The Tribunal found at [80]-[81][13] that the applicant had a well-founded fear of persecution in India and that Australia owed him protection obligations for that reason, but then found that those protection obligations were removed by s.36(3). It also found at [110][14] that the applicant would not have a well-founded fear of persecution in Nepal.
[13] CB 395
[14] CB 404-405
The Tribunal's consideration of whether the applicant had a right to enter or reside in Nepal within the meaning of s.36(3) appears at [82]-[90].[15] At [85], the Tribunal referred to administrative arrangements for the entry of Indian nationals into Nepal, using the terminology of Buchanan J in Minister for Immigration v SZRHU[16] at [88]. In doing so, it relied on information concerning entry to Nepal either at border posts with India or directly by air from India. No consideration was given to the “obvious fact” that the applicant, having a well-founded fear of persecution in India, could not be sent first to that country in order to enter Nepal either by land or directly by air. The Tribunal thus failed to consider whether there were administrative arrangements in place that would have protected the applicant if, as he must do, he were to attempt to enter Nepal without passing through India.[17]
[15] CB 395-399
[16] [2013] FCAFC 91; (2013) 215 FCR 35
[17] see MZZXS v Minister for Immigration [2015] FCA 1384 at [14]
Meaning of "deportation"
The applicant's representatives had drawn the Tribunal's attention to a document called the Immigration Manual 2008 of the Government of Nepal[18] and in particular to Chapter 6, 1.2 which stated that a person who was not a citizen of Nepal was not to be allowed entry if “deported by a foreign country”. The Tribunal at [89][19] referred to Australian legal sources as to the meaning of a “deportation order”, which under current Australian law has a very restricted meaning. In earlier Australian legal terminology, however, the term “deportation” was used to refer to the removal of Australia of any “prohibited immigrant”,[20] which in the applicant's submission is the more widely used sense of the word. The Tribunal is said to have failed to consider what might be the meaning of the term in the “administrative arrangements” in place in Nepal, and whether the applicant may have been treated as having been “deported” from Australia.
[18] CB 366
[19] CB 398
[20] Migration Act, s.18 (reprint of 19 December 1973 at
Minister’s contentions
The first particular states that the Tribunal “failed to appreciate” that the applicant would have to enter Nepal from a third country. However s.36(3) concerns an applicant who “has not” taken all possible steps to avail him or herself of a right to enter and reside in any country other than Australia. As stated in NBLC v Minister for Immigration[21] at [64] per Graham J, “all possible steps” in s.36(3) “means what it says and… should not be read down in any way.” As in NBLC at [66] and SZMWQ v Minister for Immigration,[22] the applicant here does not appear to have taken any steps to enter Nepal, whether when he lived in India or after coming to Australia. That is enough for the Tribunal to conclude that s.36(3) applied. MZZXS,[23] referred to in the applicant’s submissions does not suggest otherwise, and was in any case distinguished in Minister for Immigration v SZUSU[24] in terms that are equally applicable here.
[21] (2005) 149 FCR 151
[22] (2010) 187 FCR 109 at [47]
[23] per North ACJ at [14]
[24] [2016] FCAFC 50, (2016) 237 FCR 305 at [38]-[40]
The Tribunal was not obliged to consider what future steps the applicant could take to enter Nepal, not having taken any such steps in the past. But in any case, it is implicit in what the Tribunal states concerning border arrangements at the airport in Kathmandu at [87][25] that the applicant could enter Nepal by plane from anywhere with flights to Kathmandu (there being no suggestion that there are no flights to Kathmandu from countries other than India). Therefore, this is not a matter that the Tribunal failed to consider, even if s.36(3) was limited to steps that could be taken after the applicant left India or applied for the protection visa (which it is not).
[25] CB 397
The second particular claims that the Tribunal erred by assuming that the term “deported” in the Immigration Manual of Nepal referred to at [89][26] had the same meaning as in the Migration Act. The Tribunal does not say that; rather, it was considering a submission as to what treatment the applicant may face if deported from Australia to Nepal. On its face the reference in the Manual is to “deportation” as ordinarily understood, ie for a criminal offence, as the Tribunal held. But even if it were to be interpreted more widely to include any form of forced removal, as the applicant is an Indian citizen there is no possibility that he could be deported or otherwise removed to Nepal from Australia as submitted at CB 366.6, and the issue is simply irrelevant in considering the application of s.36(3).
[26] CB 398
Resolution
Section 36(3) has received extensive consideration in this Court and the Federal Court, notably in NBLC, SZMWQ, SZRHU, MZZXS and SZUSU, all referred to in the parties’ submissions. The authorities were traversed in the recent decision of this Court in SZNBX & Ors v Minister for Immigration & Anor.[27] The general principles concerning the application of the section can now be taken to be settled. All that is necessary in this case is to deal with the applicant’s assertions that the Tribunal erred in failing to grapple with:
a)how the applicant would get to Nepal from Australia; and
b)whether Nepal would permit the applicant to enter if he is removed from Australia.
[27] [2018] FCCA 445 at [97]-[133]
In that regard, I prefer the Minister’s submissions. The first point to note is that s.36(3) looks to the past rather than the future, albeit as at the time of decision. The provision is not to be confused with the relocation principle under the Refugees Convention. The question for the Tribunal was whether the applicant had not taken all possible steps to avail himself of a right to enter and reside in (relevantly) Nepal. The applicant might have gone to Nepal from India rather than come to Australia. The applicant might have returned from Australia to Nepal without passing through India. As the Minister notes in his submissions, the applicant did neither.
Secondly, whether removal from Australia under the Migration Act would be regarded as deportation under Nepalese law is not a question that presently needs to be decided. As the Minister points out, the applicant is not a citizen of Nepal. He is a citizen of India. If he is removed from Australia, it can be assumed that he would be removed to India rather than Nepal. Having regard to the Tribunal’s finding that the applicant has a well-founded fear of being persecuted in India on account of his sexual orientation, there may well be an issue for the Minister to consider whether the applicant should be removed to India. That was not the question that the Tribunal had to address. The Tribunal’s task was to review the delegate’s decision on the application for a protection visa. Obviously, s.36(3) of the Migration Act operates on that consideration. It does not necessarily follow that the section operates on a subsequent decision by the Minister to remove the applicant, as it does not necessarily follow that the “protection obligations” that Australia is taken not to have to the applicant include Australia’s obligation under the Refugees Convention not to refoul the applicant to a place where he faces a well-founded fear of persecution. That is a question potentially for another case and it does not need to be resolved for present purposes, because there was no error by the Tribunal in its application of s.36(3) to the review of the decision to withhold a protection visa.
Conclusion
I conclude that the applicant is unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 5 April 2018
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