Applicants A105 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT THE COURT: 1 The appellants are husband and wife. They are citizens of Nepal. They arrived in Australia on 14 March 2002. On 19 April 2002 they lodged an application for Protection (Class XA) visas with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) (the Act). 2 On 13 June 2002 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) refused to grant Protection (Class XA) visas. On 3 July 2002 the appellants applied to the Refugee Review Tribunal (RRT) for a review of that decision. 3 Only the husband claimed to be a refugee. His wife's claim for a visa depended upon her husband's application. It is convenient, therefore, to refer to the husband as the 'appellant'. 4 The appellant claimed that he was a businessman, baker and industrialist in Nepal. He was associated with the Panchayet Party and the Nepal Democracy Party. Those parties have assumed power in Nepal. 5 The appellant claimed that his bakery was 'completely demolished by the mob in August 1990'. He also claimed that a later bakery business was 'burnt down by Maoist [sic] in January 2002'. He claimed that he was a target for Maoists who intimidated, harassed and threatened him. He was unable to avail himself of the protection of the State because of his involvement in the two political parties. 6 The appellant has lived in Nepal for all of his life before coming to Australia, except for four or five times when he went to India. He went to India for two to three days or up to seven days at a time. He said he had no trouble getting in or out of India. 7 The RRT found that the Maoists were active in Kathmandu but did not accept the appellant's claim that the Maoists had burnt his business down in January 2002. 8 The RRT found that Nepal was not safe and that the appellant had some difficulties operating his business before he sold that business and came to Australia. 9 The RRT made no finding about the appellant's claim that he had a well-founded fear of persecution. It said that it did not need to because it found that the appellant and his wife had visited India on a number of occasions and that they would be permitted to enter India at any time. The RRT found that, by the Treaty of Peace and Friendship, a treaty entered into by India and Nepal and ratified in 1950, the governments of those two countries agreed to grant rights equal to those of their own citizens to the nationals of the other country residing in its territory. 10 As a consequence of that treaty, citizens of Nepal are permitted to migrate freely and without a visa to India and to remain in India. The RRT was satisfied that the appellant could travel through Kathmandu to India and enter India without difficulty, and that the appellant would not be at risk of persecution for a Convention reason if he resided in India. There are no restrictions on the length of time a citizen of Nepal can remain in India. The RRT was satisfied that the appellant would be entitled to enter and reside in India. Nepalese citizens are not obliged to obtain a work permit. 11 The RRT was satisfied that the appellant would not be at risk of harm at the hands of the Maoists if the appellant resided in India. The RRT was satisfied that there was no evidence to suggest that Maoists pursued citizens of Nepal living in India. 12 In any event, the RRT found that the Indian authorities were willing and able to provide effective protection to persons threatened by Maoists within the Indian borders. There was no risk that he would be refouled to India. 13 The RRT found that the appellant would have difficulty finding employment in India. It also found that the appellant would have some language problems. However, notwithstanding those problems, the RRT found that if the appellant entered and resided in India he would have effective protection. 14 The RRT said: 'There are some circumstances in which Australia does not have protection obligations to a non-citizen even though they may be a "refugee" as defined in Article 1 of the Convention relating to the Status of Refugees (the Refugees Convention). Those circumstances include where protection is available in a third country. Effective protection in this context is protection which will effectively ensure there is not a breach of Article 33 of the Convention which prohibits the return of a refugee to the frontiers of territories where his or her life would be threatened for one of the Convention reasons. The case law has developed in such a way that in determining this issue, relevant considerations will include: ● whether an applicant will be permitted to enter the third country ● whether an applicant will be permitted to live in the third country ● whether an applicant will be under any real risk of persecution for a Convention reason, or ● of refoulement to his or her original country.' 15 It then discussed s 36 of the Act and, in particular, the provisions of subsections (3) to (7) and it said: 'The Migration Act Section 36 (3-7) provisions operate side by side with the judicially developed "effective protection" doctrine discussed above. In summary under these provisions, Australia does not owe protection obligations to a person who: ● has a "legally enforceable" right to enter and reside in a third country (whether permanent or temporary); and ● has not taken all possible steps to avail him/herself of that right; and ● does not have a well-founded fear of Convention based persecution in that third country; and ● does not have a well-founded fear of refoulement from the third country to a country where they have a well-founded fear of Convention based persecution.' 16 The RRT concluded that the appellant could enter and reside in India and, if he did, he would not suffer persecution but, in any event, the appellant would be the subject of effective protection. 17 Because the RRT found that the appellants could reside safely in India, the RRT held that the appellants were not persons to whom Australia owes protection obligations under the Refugees Convention. 18 In those circumstances, the RRT concluded that the appellant was not a person to whom s 36(2)(a) of the Act applies in that he was not a person to whom the Minister has protection obligations under the Convention as amended by the Refugees Protocol. For the same reasons, the appellant's wife could not avail herself of s 36(2)(b) of the Act. 19 The appellant applied to this Court for a review of that decision for jurisdictional error. He claimed the jurisdictional error was the RRT's failure to determine whether the appellant had a well-founded fear of persecution if he were to return to Nepal before determining whether the appellant had effective protection in India. 20 The amended application before the primary judge particularised the ground of jurisdictional error: '1. The Tribunal failed to ask itself the correct question of law. The Tribunal failed to ask whether or not the Applicant had a well-founded fear of persecution before it considered whether or not effective state protection is available in India. The Tribunal considered "whether the Applicants have effective protection in India notwithstanding the fact that they have no existing personal connection with India." (CB90). In order for the applicant to be able to relocate to India, there needs to be a finding that the applicant does not have a fear of persecution in that country. Furthermore, the tribunal needs to make a finding of the applicant's fear of persecution in Nepal and then consider whether or not that fear of persecution extends to India. In failing to make a finding as to whether or not the applicant feared persecution in Nepal, the Tribunal is unable to determine whether that fear extended into India. The Tribunal has therefore asked itself the wrong question and made a jurisdictional error.' 21 It is important to note that the appellant did not seek to impugn the RRT's finding that the appellant had an existing right to enter and reside in India. 22 Indeed, none of the RRT's findings were attacked. Nor did the appellant seek to argue that s 36(3) applied in the circumstances of this case. 23 The only complaint was the failure of the RRT to first make a finding whether the appellant had a well-founded fear of persecution. 24 The primary judge rejected that contention and followed the decisions of the Full Court of this Court in Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543; NAEN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 6 and NAHF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 7. In doing so, the primary judge rejected the appellant's further contention that the primary judge should not follow those decisions but, instead, should follow the dissenting judgment of Emmett J in Minister for Immigration & Multicultural Affairs v Thiyagarajah for the reasons given by Finn and Conti JJ in NAGV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 144. 25 The primary judge then considered s 36 of the Act and said at [13]: ' As noted in NAEN, s 36(2) as interpreted operates of its own effect and is not constrained in its operation by those amendments. As can be seen, however, s 36(2)-(7) specify and explain one of the criteria giving rise to the right to a protection visa under the Act. In defining that criterion, in my view it is clear that it is the combination of those subsections which amounts to the legislative statement of the factual situation about which the decision-maker must be satisfied before the criterion is satisfied. Each of s 36 (3)-(5) operate to explain how the criterion in s 36(2) is to be understood. See e.g. Vines v Djordjevitch (1954) 91 CLR 512. The Tribunal's findings, directed in terms towards s 36(3) of the Act indicate that it was satisfied that the applicants do fall within that sub-section. It addressed the qualification expressed in s 36(4) and 36(5). It was satisfied that neither applied. In my judgment the Tribunal concluded the consequence is that by the statutorily prescribed route the Tribunal concluded that the applicants were not persons to whom Australia has protection obligations under the Convention.' 26 After considering s 36 of the Act, the primary judge said that, even if jurisdictional error was made out, he would decline to grant the relief sought. He said there would be no utility in granting the prerogative orders which were sought because, if the matter were remitted to the RRT to determine whether it was satisfied that the appellant had a well-founded fear of persecution if the appellant returned to Nepal, the RRT would still, nevertheless, have to address whether the appellant has effective protection in India which would be answered adversely to the appellant. In those circumstances, the appellant's review before the RRT would be bound to fail. 27 Two 'grounds' of appeal have been raised in the Notice of Appeal filed on 2 April 2004. They are: '1. The learned Trial Judge was obliged to follow NAGV v Minister for Immigration & Multicultural & Indigenous affairs [sic] [2003] FCAFC 144 (NAGV), NAEN v Minister for Immigration & Multicultural & Indigenous affair [sic][2004] FCAFC 6 (NAEN) and Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 (Thiyagarajah) in interpreting Section 36 of the Migration Act and Articles 32 and 33 of the Refugees Convention as they applied to this case. However, the appellants in NAGV and NAEN have sought special leave to appeal to the High Court. If the appellants are successful in their appeals before the High Court, and if the High Court overturns Thiyagarajah, then the Full Federal Court will be obliged to follow the High Court in interpreting Section 36 of the Migration Act and Articles 32 and 33 of the Refugees Convention as they apply to this case. 2. The Appellants respectfully request that their appeal not be heard until the High Court has delivered judgment in NAGV and NAEN.' 28 The second ground, of course, is no ground at all. Nor, indeed, is the first ground which seems to be an explanation for the second ground. The grounds, as formulated, cannot stand. 29 However, it appears that the appellants' complaint is that, although the primary judge was obliged to follow the decisions of the Full Court mentioned in the first ground, those decisions are wrong. 30 The reference in the grounds to the High Court having granted special leave to appeal in NAGV and NAEN serves to indicate that the appellants wish to preserve their position pending the hearing of the appeals to the High Court in those matters. 31 On 11 June 2004 the appellants filed a Notice of Motion which was heard by the primary judge in which the appellants sought orders that the appeal not be heard until the High Court hands down its judgments in NAGV and NAEN. On 15 June 2004 the primary judge refused the motion because the two matters in which the High Court has given leave are only concerned with s 36(2) of the Act and not with s 36(3) to s 36(5), which were considered by the RRT in this matter. 32 The appellant renewed his application for an adjournment of the hearing of this appeal until such time as the High Court has disposed of the appeals in those other matters. In the Court's opinion, that application should be refused. 33 In Minister for Immigration & Multicultural Affairs v Thiyagarajah the respondent was a native of Sri Lanka who had travelled to France and had been accorded refugee status. He later travelled to Australia and sought a protection visa. The RRT found that the respondent was not entitled to such a visa because Article 1E of the Convention applied. Article 1E provides: ' E. This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.' 34 On an application for review, the primary judge reversed the RRT decision because he concluded that restrictions imposed by France on a refugee with resident status meant that the respondent did not possess the rights and obligations which are attached to someone who is a national of France. Article 1E, therefore, did not apply. 35 The primary judge's decision was itself reversed by the Full Court. The Full Court held that, because the respondent had been recognised as a refugee in France and that country had issued him with a travel document, it was not inconsistent with Australia's obligations as a contracting State to the Convention to effect the respondent's deportation without first considering the respondent's claim for refugee status. It was not, therefore, necessary to consider the interpretation of Article 1E although the Court, in any event, did. 36 The decision in Minister for Immigration & Multicultural Affairs v Thiyagarajah did not involve a construction of ss 36(3) to 36(7). Indeed, those subsections were not inserted into the Act until 16 December 1999 when assent was given to the Border Protection Legislative Amendment Act 1999. 37 In NAGV v Minister for Immigration & Multicultural & Indigenous Affairs the Full Court, although doubting the correctness of the earlier Full Court decision in Minister for Immigration & Multicultural Affairs v Thiyagarajah, followed that decision. The amendments, which gave rise to ss 36(3) to 36(7), did not impact upon the appellant in that case although Emmett J referred to them in his reasons. Nor also were those subsections relevant in NAEN v Minister for Immigration & Multicultural & Indigenous Affairs. 38 The appellant argued before this Court that the High Court might consider the construction of ss 36(3) to 36(7) in those matters in which it has given leave, even though those subsections are not directly relevant to those appeals. 39 This Court should not speculate on what the High Court might or might not do. Even if the High Court were to consider ss 36(3) to 36(7), its reasons may or may not have any application to this appeal. 40 This matter was decided by the RRT on two bases. First, it followed the decision in Minister for Immigration & Multicultural Affairs v Thiyagarajah. Secondly, it found that the appellant had a right to enter and reside in India and, in those circumstances, because of the provisions of s 36(3), Australia is taken not to have protection obligations to the appellant who has not taken all possible steps to avail himself of that right. 41 There is no reason why the appeal should not be heard. Indeed, the appeal was argued. 42 The appellant has not articulated any ground of appeal in the Notice of Appeal that could possibly succeed. The appellant's real complaint was that the decision in Minister for Immigration & Multicultural Affairs v Thiyagarajah is wrong. 43 However, this Court should follow that decision, unless ss 36(3) to36(7) impact upon that decision. It was not argued on this appeal that Minister for Immigration & Multicultural Affairs v Thiyagarajah could be distinguished by reason of ss 36(3) to 36(7). Inevitably, this appeal must be dismissed because this Court is constrained to follow its earlier decision in Minister for Immigration & Multicultural Affairs v Thiyagarajah and those cases that have followed it: NAGV v Minister for Immigration & Multicultural & Indigenous Affairs per Finn and Conti JJ. 44 The appellant can take other steps to protect his position on this ground pending the determination of the appeals in the High Court. 45 The appellant did not attack the finding that underpinned the RRT's decision on s 36(3) or the RRT's construction of s 36(3). For that further reason, the appeal must be dismissed. 46 The appeal is dismissed with costs. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.