Applicant A125 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2004-03-12|Before: Mansfield J

introduction 1 This application is for prerogative orders under s 39B of the Judiciary Act 1903 (Cth) to quash a decision of the Refugee Review Tribunal given on 15 January 2003, and to direct that Tribunal to hear and determine the application before it according to law. The Tribunal affirmed a decision of a delegate of the respondent given on 11 July 2002 refusing to grant to the applicant a protection visa for which he had applied under the Migration Act 1958 (Cth) (the Act). The applicant had applied for a protection visa under the Act on 9 October 2001 shortly after his arrival in Australia. 2 It is a criterion for the grant of a protection visa that the applicant be a non-citizen in Australia in respect of whom the respondent, and on review the Tribunal, is satisfied that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (the Convention): s 36(2) of the Act. There are further criteria for the grant of a protection visa specified in the Migration Regulations 1994 (Cth), but the decision did not turn upon them and it is not necessary to refer to them. If the decision-maker is satisfied that the criteria for the grant of the visa exist, s 65(1) of the Act directs that the visa be granted. It also provides that if the decision-maker is not satisfied that the criteria for the grant of the visa exist, the application for the visa is to be refused. 3 The applicant sought to bring himself within the criterion in s 36(2) of the Act by establishing that he is a refugee as defined in Art 1A(2) of the Convention, namely a person who: '… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.'

the applicant's claim and the tribunal's reasons 4 The applicant is a citizen of Nepal. He operated a boarding school in his home town of Pokhara. He is a member of the RPP (NDP) political party, associated with the current government, but his involvement is limited to activities in his local area. He claimed that he has a well-founded fear of persecution if he were to return to Nepal because Maoist insurgents target private schools and have extorted money from him, and he is unable to obtain protection from the authorities as many police have been killed and the police only support Congress Party members. Consequently he has been deprived of his livelihood through his school. He also said he is unable to express his political views as an RPP (NDP) member because it is an anti-Congress Party and anti-communist. 5 The Tribunal, in the light of the applicant's evidence and independent country information about Nepal, accepted that there are active Maoist insurgents in Nepal who have been fighting for some years, and that the Nepalese authorities have difficulty controlling them. It also accepted that the applicant and his family have not experienced physical violence from Maoist insurgents because they have regularly paid protection money to the Maoists. It accepted that Maoists in his local area are interested in him only to the extent that he opposes some of their policies in his local area. It accepted that he was unable to obtain protection from the authorities in relation to the problems at his school. Hence, it was satisfied that the applicant had a genuine 'subjective and generalised' fear of Maoists if he were to return to Nepal. 6 It did not, however, proceed to find that he was in fact a person who has a well-founded fear of persecution by reason of his political beliefs or for some other Convention reason if he were to return to Nepal. The Tribunal explained that it was not necessary for it to make findings on the full extent of the applicant's difficulties if he were to return to Nepal. 7 The Tribunal explained that, by reason of Art 32 and 33 of the Convention, Australia does not have protection obligations to the applicant even though he may be a 'refugee' from Nepal as defined in Art 1A(2) of the Convention because effective protection is available to him in a third country. The measure of effective protection is determined by Art 33. Articles 32 and 33 are in the following terms: 'Article 32 1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order. … Article 33 1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.' 8 The Tribunal said that, in determining whether effective protection is available in the third country, it was necessary to address whether the applicant would be permitted to enter that third country, then to remain in it indefinitely, and whether the applicant in that third country would face any real risk of persecution for a Convention reason or would face any real risk of refoulement to his or her original country. In determining the answers to those questions, the Tribunal identified its role as assessing the practical realities in the circumstances, rather than to look at strict legal entitlements. The Tribunal found on the whole of the evidence that the applicant has, or can secure, effective protection in India, and so was not a person to whom Australia has protection obligations under the Convention. It noted and accepted that the applicant has not been to India for many years and has no special or personal connection to India. 9 In the light of independent country information, it found: 'I am satisfied on the basis of the country information referred to above that the Applicant has access to India and that he will not encounter difficulties travelling there. Furthermore I am satisfied that even if the Applicant travels through Kathmandu to get to India he will not encounter a risk of serious harm for a Convention reason in Kathmandu. I make this finding because he has never encountered any difficulty in Kathmandu. I do not accept that his profile is such or that the nature of his problem in his home town in Nepal is such that for a Convention reason he would come to that attention of Maoists from Pokhara while in Kathmandu. If he faces a risk of harm I am satisfied that it is only in Pokhara where he is known. I am satisfied that the Applicant will not be at risk of persecution for a Convention reason in India, or of refoulement to Nepal. The information above indicates that persons like the Applicant who are not involved in Maoist activity and who are anti Maoist are not at risk of either persecution or refoulement. The applicant has no entitlement to permanent residence but this is not an essential requirement for effective protection in a third country.' 10 The Tribunal explained why it considered that the applicant would not have any difficulty in India because of Maoist activists. The independent country information indicated that the Maoist insurgency in Nepal has not extended into India. Nepalese citizens living in India are not targeted either by Nepalese Maoists or by any Maoists in India. Moreover, the Tribunal was satisfied that the government of India is willing and able to provide effective protection to persons threatened by Maoists within its border. 11 The Tribunal also concluded that the applicant is not a person who might be refouled from India to Nepal. He does not have the profile or characteristics of persons from Nepal who might be refouled by India. The only information was that the Indian government does take action against Maoists from Nepal who are in India, but the applicant did not fit that description. 12 Consequently, the Tribunal was satisfied that the applicant does not have a well-founded fear of persecution in India for a Convention reason. It was also satisfied that he would not be returned by India to Nepal. It appreciated that the applicant would have some difficulties in India. He would have difficulty finding a job. There were other matters which, if the issue was whether he could internally relocate within Nepal, he might be found to be exposed to unreasonable requirements in relocating: see Randhawa v Minister for Immigration & Multicultural Affairs (1992) 52 FCR 437. The Tribunal did not consider those factors as relevant to its decision. 13 It concluded that as a matter of practical reality and fact the applicant could enter and live in India with most of the rights and privileges commonly available to nationals of India and without fear that he would be forced to return to Nepal. He may be vulnerable to some restrictions in India, and it noted that there are some reports of discrimination or resentment by Indians to Nepalese citizens living in India. It did not consider that such discrimination or resentment, even if it occurred, would amount to persecution in the sense in which that expression is used in the Convention. It did not regard the fact that India is not a signatory to the Convention as leading to the view that the applicant did not have effective protection in India, given the history of the fulfilment of its obligations to Nepalese citizens under the India/Nepal treaty of peace and friendship. 14 Consequently, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Convention, and therefore he did not satisfy the criterion set out in s 36(2) of the Act.

the jurisdictional error alleged 15 The applicant alleges that the Tribunal committed jurisdictional error by not deciding, in the first instance, whether the applicant has a well-founded fear of persecution for a Convention reason if he were to return to Nepal. The Tribunal did not finally decide that question, although its reasons indicate that it was appreciative of the issue and generally accepted the applicant's evidence about what he feared might befall him if he were to return to Nepal. 16 There is no submission, however, that even if the Tribunal had decided positively and affirmatively that the applicant has a well-founded fear of persecution if he were to return to Nepal, the Tribunal should not then have gone on to consider whether the applicant might have effective protection in India. There is also no submission that the Tribunal erred in law in the way in which it considered whether the applicant might have effective protection if he were to enter India. The point is simply that the first necessary step in the decision-making process by the Tribunal was not undertaken. 17 The respondent contends that, in the circumstances, it was not necessary for the Tribunal to have first determined whether the applicant had a well-founded fear of persecution in Nepal. It was sufficient that it was satisfied that Australia did not owe protection obligations to him under the Convention by reason of the capacity to secure effective protection in India. The findings that the applicant is able to enter and to remain in India indefinitely, and that he enjoys generally the rights of Indian citizens whilst in India (perhaps excluding the right to own real property and the right to vote), and the finding that there is no risk of him being subjected to persecution for a Convention reason whilst in India or of being refouled to Nepal by the Indian authorities, are not challenged. 18 The respondent also contends that, even if the alleged jurisdictional error were made out, the applicant should not be entitled to the relief which he claims because it would be pointless to do so. The matter will be remitted to the Tribunal to determine whether or not the applicant has a well-founded fear of persecution in Nepal. If that question were answered affirmatively (assuming the best from the point of view of the applicant), the Tribunal would still have to determine if he has effective protection elsewhere, in particular in India. The Tribunal's findings on that matter were not challenged. There was, therefore, no utility in remitting the matter to the Tribunal for further consideration along the lines the applicant suggested.

consideration 19 Counsel for the applicant also contended that the dissenting judgment of Emmett J in the Full Court in NAGV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 144 (NAGV) was correct and should be followed. His Honour concluded that it is erroneous to find that Australia does not have protection obligations to a particular person under the Convention (the expression used in s 36(2) of the Act) where, as a matter of practical reality and fact, the visa applicant is a person who has effective protection in another country. So much was decided by the Full Court in Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 (Thiyagarajah). Emmett J, as a member of the Full Court in NAGV did not follow Thiyagarajah as his Honour regarded the provisions of Art 33 of the Convention as creating a negative obligation only upon Australia once it had otherwise been established that Australia owes protection obligations under the Convention to a particular visa applicant. In NAGV Finn J and Conti J agreed with the conclusion which Emmett J had reached, but nevertheless followed the decision of the Full Court in Thiyagarajah as a matter of comity. As Finn J pointed out at [2] Thiyagarajah has been analysed, considered and applied in a number of decisions of the Full Court of this Court and in many decisions at first instance. 20 Following the decision in NAGV, the Full Court (Whitlam, Moore and Kiefel JJ) in NAEN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 6 did not follow the decision in NAGV but followed the earlier decision of the Full Court in Thiyagarajah. Their Honours at [49] concluded: 'The question posted by s 36(2) is determined by reference to the operation of Art 33. If Art 33 does not prevent Australia from expelling or returning a refugee to the frontiers of another territory, Australia does not owe protection obligations to that person. In our view that was a correct approach and one permitted by the Rules of Construction of Treaties. So understood Art 33 is not to be taken as prohibiting return to a country unless the refugee has a prior connection with it.' 21 In NAHF v Minister for Immigration & Multicultural Affairs [2004] FCAFC 7, the Full Court (Whitlam, Moore and Kiefel JJ) addressed circumstances very much like the present. Their Honours reaffirmed the view that Thiyagarajah was correctly decided. They affirmed that the principle of effective protection in a safe third country as explained in Thiyagarajah is correct, so that Australia as a contracting State to the Convention may return a person to a country to which that person has no former connection. Their Honours also noted that neither of the appeals in NAGV or NAEN involve consideration of s 36(3)-(5) of the Act, inserted by the Boarder Protection Legislation Amendment Act 1999 (Cth) on 16 December 1999. It was not necessary for the Full Court to consider the operation of those sections in that case. It has been held that s 36(3) does not alter the operation of s 36(2): Kola v Minister for Immigration & Multicultural Affairs (2002) 120 FCR 170. 22 I am of course obliged to follow the decisions of the Full Court to which I have referred. In my judgment, therefore, s 36(2) operates so that Australia does not owe protection obligations to a person who may acquire effective protection from persecution for a Convention reason in a third country, and who is not at risk of being sent from that country to the country in respect of which a fear of such persecution is well-founded. Accordingly, where as a matter of practical reality, the applicant is likely to be given effective protection even in the absence of a legally enforceable right to enter and live in the third country, and to remain in the third country without risk of persecution for a Convention reason and without risk of being refouled to the applicant's country of origin, Australia will not owe protection obligations to that person. See also Rajendran v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 526; Minister for Immigration & Multicultural Affairs v Gnanapiragasam (1998) 88 FCR 1. 23 Accordingly, whether or not a visa applicant for a protection visa is a person to whom Australia has protection obligations under the Convention may sometimes be resolved by considering whether the visa applicant has a well-founded fear of persecution for a Convention reason if returned to the country of nationality. In other cases it may be resolved by considering whether there is a well-founded fear of persecution in the country of nationality and then by considering whether the visa applicant has effective protection in a third country. And it may sometimes be resolved, where the question arises whether there is a third country where the visa applicant may otherwise secure effective protection by resolving that question only. If there is effective protection, so that Art 33 of the Convention is not contravened by the visa applicant going to that third country, then the applicant will not have satisfied the Tribunal that the applicant is a person to whom Australia has protection obligations under the Convention. The criterion specified in s 36(2) of the Act will not have been made out. In such circumstances it would not be necessary for the Tribunal formally to conclude whether or not the visa applicant has a well-founded fear of persecution if he were to return to his country of nationality. 24 In my judgment therefore the Tribunal did not fall into error in considering the applicant's claims in the way in which it did. I note that Selway J, in a matter also involving a putative refugee from Nepal who was found to have effective protection in India, and where the Tribunal did not formally find whether the visa applicant had a well-founded fear of persecution in Nepal, reached a similar conclusion: see SJQB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1284. 25 Even if the applicant's contention of jurisdictional error were correct, I would decline to grant the prerogative orders which he seeks. It is plain that the making of such prerogative orders is discretionary. See R v Commonwealth Court of Conciliation and Arbitration: Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400 per Laytham CJ, Rich, Dixon, McTiernan and Webb JJ; R v Ross Jones; Ex parte Green (1984) 156 CLR 185 at 194 per Gibbs CJ; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1;[2003] HCA 1 at [90], 21 per Gaudron and Kirby JJ. Put at its highest, the applicant's contention is that the Tribunal should positively have found that the applicant is a person who has a well-founded fear of persecution if he were to return to Nepal. It was accepted that, in that event, (subject to the argument seeking to uphold the dissenting judgment of Emmett J in NAGV) the Tribunal would have to consider whether the applicant had effective protection in India. It did so. The way in which it did so is not the subject of criticism on this application. It is not submitted that the way in which it did so involved jurisdictional error. In those circumstances, in my judgment, there would be no utility in granting the prerogative relief which is sought. 26 I note that there is an application for special leave to appeal to the High Court from the decision of the Full Court in NAGV. 27 For those reasons the application must be dismissed. I order that the applicant pay to the respondent costs of the application. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Dated: 11 March 2004 Counsel for the Applicant: M W Clisby

Boarder Protection Legislation Amendment Act 1999(Cth)

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