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[2004] FCA 214
Federal Court of Australia
2004-03-12
Mansfield J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is another matter in which the applicants are citizens of Nepal who sought, but were not granted, protection visas under the Migration Act 1958 (Cth) (the Act) because they were found to have effective protection in India. 2 The application was made on 24 February 2003 in the High Court, and was remitted to this Court by order made on 11 June 2003 for further hearing and determination. It sought to quash a decision of the Refugee Review Tribunal (the Tribunal) given on 14 January 2003. The Tribunal had affirmed a decision of a delegate of the respondent not to grant to the applicants a protection visa under the Act. 3 The applicants are husband and wife, but the husband only claimed to have a well-founded fear of persecution if they were to return to Nepal. The wife's claim was a dependant or derivative one. In those circumstances it is convenient to refer to the husband as 'the applicant'. He is a businessman, baker and industrialist. He is associated with the Panchayet Party (RPP) in a relatively minor way in his local area. He claimed his bakery had been demolished by a mob in August 1990 and by Maoist insurgents in January 2002. He feared further violent behaviour from Maoist insurgents in Nepal because he had been targeted by them as a political target and because he was perceived to be rich, and he feared that the Government would not protect him because of his political associations. 4 The Tribunal generally accepted that the applicant had some difficulties in operating his business, although not to the extent he claimed. It did not accept that his business was burnt down by Maoists in January 2002 (at the hearing before the Tribunal the applicant did not maintain that claim in those terms and indicated that the earlier claim to that effect had been misunderstood), but it did accept that he had sold his business before leaving for Australia. It did not make firm findings in relation to the events which the applicant claims to have caused him to have left Nepal. Accordingly, it did not determine whether the applicant has a well-founded fear of persecution for a Convention reason if he were to return to Nepal. 5 The way the Tribunal resolved the matter was to determine that, in any event, the applicants have effective protection in India. It found that they would be permitted to enter India, as millions of other Nepalese have done without apparent difficulty, and as the applicants have done in the past. Under the Treaty of Peace and Friendship ratified in July 1950, the governments of Nepal and India have agreed to grant rights equal to those of its own citizens to the nationals of the other residing in its territory. Nepalese citizens do not need a passport to travel to India, and can reside and work in India for indefinite periods. They do not need particular permission or documentation to be able to do so. The Tribunal also found that the applicants could get access to India, either directly or through Kathmandu in Nepal. It specifically found that, if they needed to access India through Kathmandu, they would not encounter a risk of serious harm for a Convention reason in Kathmandu because they had never encountered any such difficulty in the past. The Tribunal did not regard the applicant's profile as such that, for a Convention reason, he would come to the attention of Maoists from his home town whilst in Kathmandu. 6 The Tribunal was also satisfied that the applicants would not be at risk of persecution for a Convention reason if they were to live in India, and that there was no risk that the Indian government would refoule them to Nepal. The applicants are not involved in Maoist activity and do not fall into the category of persons who might be subject to refoulement by the Indian authorities. It also rejected their claim that there was any risk of Maoist insurgents in Nepal or Maoists in India causing any trouble to the applicants if they were to remain in India. In addition, it found that the government of India is willing and able to provide effective protection to persons threatened by Maoists within its borders. 7 Hence, although it accepted that the applicants would not have all the rights and privileges which attached to nationals of India, and would have some difficulty with employment in India, it concluded: 'The country information referred to above indicates that as a matter of practical reality and fact the applicant can enter and live in India, with most rights and privileges commonly available to nationals of that country, without fear that he will be forced to return to Nepal. I accept that there are some restrictions on Nepalese in India and that there are reports of discrimination or resentment. I am not satisfied on the basis of the country information that Nepalese citizens living in India are subjected to discrimination, hardship or harm that constitutes persecution in the sense of the Convention … … I accept that if he lived in India he may have a language problem and finding a job that would adequately support his family would be difficult. I note, however, 4 million Nepalese live in India. It is true that from time to time India has trouble with Pakistan. And I accept that the applicants do not have experience in India. Notwithstanding the fact that I accept the applicant would encounter difficulty I am not satisfied that the applicant has a well-founded fear of suffering persecution in India for a Convention reason.' 8 As the Tribunal found that the applicants have effective protection in India, the Tribunal did not consider that the applicants are persons to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol, and so did not satisfy the criterion for the grant of a protection visa specified in s 36(2) of the Act. 9 To succeed on the application, it is necessary for the applicants to demonstrate jurisdictional error on the part of the Tribunal: Applicant A152/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2. The jurisdictional error asserted was that the Tribunal had failed to determine whether the applicants have a well-founded fear of persecution if they were to return to Nepal before determining whether they had effective protection in India. In Applicant A125/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 213. I addressed a similar contention. I have given judgment in that matter today. For the reasons given in that matter, I reject that contention. In my judgment the Tribunal's approach was consistent with 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. There are a number of other decisions of the Full Court of this Court to the same effect, as noted by Finn and Conti JJ in NAGV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 144, where their Honours, although agreeing with the dissenting judgment of Emmett J in which his Honour declined to follow the decision of the Full Court in Thiyagarajah, felt themselves bound by the weight of authority to apply that test. 10 For the sake of completeness, I note that counsel for the applicant also contended that the dissenting judgment of Emmett J in NAGV was correct. He accepted that I would be unable to follow it and was bound to follow the decisions of the Full Courts of this Court to which I have referred but wished to keep the point alive. 11 For those reasons, the application must fail. 12 As was noted in NAHF, in none of those decisions have the particular provisions of s 36(3)-(5) of the Act been given particular consideration. In this matter, in its consideration of the relevant law, the Tribunal specifically referred to those provisions which, it said, operate side by side with the judicially developed 'effective protection' doctrine discussed above. Its reasons then include findings which (as I have noted) are specifically directed to the matters to which s 36(3)-(5) refer. They provide: '(3) Australia is taken not to have protection obligations to 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. (4) However, if the non-citizen has a well-founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country. (5) Also, if the non-citizen has a well-founded fear that: (a) a country will return the non-citizen to another country; and (b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion; subsection (3) does not apply in relation to the first-mentioned country.'
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.
14 For that additional reason, in my judgment, jurisdictional error on the part of the Tribunal is not made out. 15 Even if jurisdictional error were made out, I would decline to grant the relief sought. As was the case in Applicant A125/2003 at [24] in my view there would be no utility in granting the prerogative orders which are sought. That is because, taken at the best from the applicants' point of view, the matter would be remitted to the Tribunal to determine whether it was satisfied that they had a well-founded fear of persecution if they were to return to Nepal. Assuming that finding was made favourably to them, the Tribunal in accordance with the authorities would nevertheless then have to address whether they have effective protection in India. The Tribunal's approach to the consideration of that question has not been said to be tainted by jurisdictional error. Consequently, its approach to that question would stand whether or not it found the applicants to have a well-founded fear of persecution if they were to return from Nepal. In those circumstances, there would appear to be no utility in making the orders which are sought.
16 In my judgment the application should be dismissed. I order that the applicants pay to the first respondent costs of the application. I certify that the preceding sixteen (16) 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
Applicants A105 of 2003
Minister for Immigration & Multicultural & Indigenous Affairs
(2003) 211 CLR 476
(1997) 80 FCR 543
(1954) 91 CLR 512