Applicants A106 of 2003 v Minister For Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia (Full Court)|2004-11-01|Before: Finn J, Mansfield JJ

THE COURT 1 This is an appeal from a judgment of Finn J in which his Honour dismissed the appellants' application to review a decision of the Refugee Review Tribunal ("the RRT"). The RRT decided that the appellants were not entitled to protection visas by reference to the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 ("the Convention").

Background 2 The appellants are husband and wife. They entered Australia from India on 22 April 2000 and applied for protection visas on 1 June 2000. The male appellant was the only one of the appellants to make a claim under the Convention. The female appellant's claim was based on her membership of the family unit. The appellants are citizens of Nepal and the male appellant's claim was considered by reference to Nepal. The male appellant claimed that he had a well -founded fear of persecution at the hands of Maoists, on account of his political opinion and membership of a particular social group. 3 A delegate of the first respondent refused the application for protection visas on 23 June 2000. On 18 July 2000 the appellants applied for a review of that decision to the RRT. On 7 June 2002 the RRT affirmed the decision of the delegate not to grant protection visas to the appellants.

The RRT decision 4 The RRT accepted the claim of the male appellant that he had a genuine subjective fear of persecution from Maoists in Nepal on account of his political opinion and his membership of a particular social group. It found him to be a credible witness and his claims to be consistent with country information. At p 17 of its reasons for decision the RRT said: "There is abundant evidence before the Tribunal that there is a real chance that the applicant, as a member of the Nepali Congress Party and ruling elite, would be seriously harmed by the Maoists should he return to Nepal now or in the reasonably foreseeable future." 5 On a separate ground, that is, that he will be targeted by "unseen elements" in Nepal on account of his opposition to corruption, the RRT did not consider that the male appellant faced a real chance of being seriously harmed if he were to return to Nepal. This did not affect its earlier conclusion concerning harm at the hands of Maoists. 6 Notwithstanding its finding about the male appellant facing a real chance of persecution if returned to Nepal, the RRT affirmed the decision under review. It did so because it considered that the male appellant had effective protection available to him in India. It found that the male appellant, as a citizen of Nepal, was able to enter, re-enter and live in India, with all the rights and privileges of an Indian national and without any fear of being forcibly returned to Nepal. It found that the male appellant had property in India and that his family had connections with Calcutta, going back to 1948. 7 The RRT noted the male appellant's claim that the porous border between India and Nepal could result in him being at risk from Maoists in India. In response the RRT concluded that the country information before it showed that Maoist activities are restricted to Nepal.

The reasoning of the primary judge 8 Finn J observed that the appellants were refused protection visas because the male appellant "had effective protection available to him in India", and that "(i)n consequence the Tribunal found that he did not satisfy the criterion set out in s 36(2) of the Migration Act (Cth) ...". 9 Section 36 of the Act provides that: "(1) There is a class of visas to be known as protection visas. (2) A criterion for a protection visa is that the applicant for the visa is:

(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(b) a non-citizen in Australia who is the spouse or a dependant of a non-citizen who: (i) is mentioned in paragraph (a); and (ii) holds a protection visa. Protection obligations (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. Determining nationality (6) For the purposes of subsection (3), the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country. (7) Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act."

10 His Honour noted that the RRT had applied Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543, in considering the meaning of "effective protection" and to that end had noted that the relevant considerations applicable were: · whether there is an enforceable right to enter and reside in India, whether temporarily or permanently; · whether the male appellant had taken all possible steps to avail himself of that right; · whether there was a well founded fear of persecution for a Convention reason in India; and · whether there was a risk that Indian authorities would return the male appellant to Nepal. 11 At [7] of his reasons for judgment, Finn J said: "The applicant now concedes that according to decided case law binding upon me I would be obliged to conclude that the Tribunal's decision on the issue of effective protection is unimpeachable." At [10] his Honour said: "Mr Clisby, for the applicant, has submitted that I should reserve my decision in this particular matter until the High Court has considered the special leave applications in NAGV and NAEN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 6(the decision of a differently constituted Full Court, which arrived at a contrary conclusion to NAGV), presumably so that I will then have the guidance of the High Court on the proper construction of s 36 of the Act. This clearly is not a course which I properly can take. There is a considerable body of case law binding upon me that is declaratory of the law as it is presently understood. No good reason exists, at the moment, for doing other than applying that law."

The appellants' submissions on appeal 12 On 19 October 2004, the appellants filed a supplementary notice of appeal. We granted leave, today, for that notice of appeal to stand in lieu of the notice of appeal originally filed. The former notice contained no proper grounds of appeal but was, in effect, a request not to deliver reasons in the matter until the High Court has given judgment in a matter in which the correctness of Thiyagarajah was considered on 1 September 2004 (NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs, Matter S 187 of 2004). 13 The supplementary notice of appeal conceded that Finn J was obliged to apply Thiyagarajah and repeated the request made to him that the Court not deliver its judgment in this appeal until the High Court has delivered judgment in NAGV, being an appeal from the judgment of a Full Court of this Court in NAGV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 144. 14 The supplementary notice of appeal raised the question whether the RRT failed to take into account a relevant consideration, namely whether the male appellant's fear of persecution in Nepal extended to India on account of risk from harm by Maoists in India. Further, it raised the correctness of the RRT's application of the test contained in s 36(3) to (5). (i) Effective protection consideration 15 Like the primary judge we do not consider it appropriate to refrain from giving our judgment in this matter, pending the outcome of NAGV. It cannot be known with any certainty when judgment in NAGV will be delivered by the High Court. It is the duty of this Court to apply the law as it stands. Our view is fortified by the judgment of a Full Court of this Court in Applicants A105 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 239where, at [43], the Court said: "Inevitably, this appeal must be dismissed because this Court is constrained to follow its earlier decisions in Minister for Immigration and Multicultural Affairs v Thiyagarajah and those cases that have followed it…The appellant can take other steps to protect his position on this ground pending the determination of the appeals in the High Court". 16 Counsel for the appellants did not seek to submit that Thiyagarajah should not be followed in this appeal. We consider that we should follow Thiyagarajah unless it can be demonstrated that it is clearly wrong. We decline to embark on such a task in the absence of full argument on the issue. In any event, we accept the submission of counsel for the respondent that NAGV concerned the proper interpretation of s 36(2) of the Act, while the RRT applied the provisions of s 36(3) to (5) in this case, in addition to considering s 36(2). Sub-sections (3) to (5) of s 36 were enacted after the occurrence of the facts that gave rise to the judgment in Thiyagarajah. A fair reading of the RRT's decision in this case reveals that it considered that the appellant had not taken all possible steps to avail himself of a right to enter India and reside there: see s 36(3). The appellant had a right to return to India but had not attempted to go back there, preferring instead to try to remain in Australia, as the RRT recognized at p 11 of its reasons for decision. Counsel for the appellant acknowledged that the RRT's use of the expression "effective protection" comprehended a proper understanding of the question posed by s 36(4).

(ii) Maoists in India 17 It was not put to Finn J that the RRT erred in failing to take into account that the male appellant's fear of Maoists extended to what might happen in India. It cannot be said, therefore, that Finn J erred in any respect concerning this claim. The Full Court exercises jurisdiction for the purpose of determining and if necessary, correcting any error below. The appeal is not to be conducted as if the primary judge had not delivered any reasons. It is not an appeal from the reasons for decision of the RRT. That is sufficient to dispose of this ground. However, in any event, it is devoid of merit. The RRT did consider such a claim and rejected it, as referred to earlier in these reasons at [7] above. Counsel for the appellants contended that the RRT's treatment of this issue was "perfunctory in nature" and that it did not properly consider that claim. There is no basis for that submission nor is there any basis for the alternative submission that the RRT asked itself a wrong question on this topic.

The notice of objection to competency 18 The first respondent has filed a notice of objection to competency in respect of the appeal. She considers that the appellant requires leave to appeal as the judgment appealed from was an interlocutory one. 19 Given our conclusion as to the merits of the appeal, it is unnecessary for the Court to consider whether the appeal is incompetent. There are conflicting Full Court authorities on this issue: see Applicant S61 of 2002 v Refugee Review Tribunal [2004] FCAFC 150 and NAHQ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 297. In the absence of full argument on the point, which in this case is unnecessary, it would not be helpful to express a view in favour of either approach. Order

20 Having regard to the foregoing the Court will order as follows:

The appeal is dismissed.
The appellants pay the first respondent's costs of and incidental to the appeal, to be taxed, if not agreed.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Cooper, Marshall and Mansfield.

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