BCI16 v Minister for Immigration and Border Protection

Protection obligations (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. (4) However, subsection (3) does not apply in relation to a country in respect of which: (a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country. 5 In Minister for Immigration, Multicultural Affairs & Citizenship v SZRHU [2013] FCAFC 91; (2013) 215 FCR 35, the Full Federal Court considered whether a 'right to enter and reside in' another country as referred to in s 36(3) need be a legally enforceable right. It decided the position on that topic. It held that it is sufficient to have a 'liberty, permission or privilege lawfully given' to enter and reside in the country which has not been withdrawn. 6 The Court in SZRHU made its findings in the context of considering the Treaty of Peace and Friendship between India and Nepal 1950 (Treaty). It directed that the Tribunal should have regard to the terms of the Treaty and evaluate whether the administrative arrangements in place, taken with the terms of the Treaty, satisfy the test of a liberty, permission or privilege lawfully given to enter and reside in the country (see also the discussion of SZRHU in SZTBJ v Minister for Immigration and Border Protection [2015] FCA 1182). 7 Further, 'all possible steps' in s 36(3) 'means what it says and … should not be read down in any way': NBLC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 272; (2005) 149 FCR 151 at [64].

The appellant's claims 8 The appellant arrived in Australia on a student visa in 2007. In 2014 he applied for a protection visa, essentially on the basis that he had married and divorced a woman outside his caste and religion and his former brother-in-law, along with the former brother-in-law's relatives and villagers, would try to harm or kill him if he returned, and the state would not offer effective protection.

Tribunal's findings 9 The delegate found that the appellant's claims were not credible and it did not accept that he faced harm if he returned to India. 10 Although the Tribunal expressed some concerns about the appellant's credibility due to inconsistencies in his evidence, it was willing to accept on the basis of country information that there was significant pressure for individuals to marry within their own caste and religion, and that honour killings are prevalent in towns and villages, particularly in the north of India. 11 The Tribunal accepted that the appellant had a well-founded fear of persecution in his home area of Punjab at the hands of his brother-in-law and others in the community on the basis of his religion and caste. 12 It also accepted that the appellant would not be able to avail himself of the protection of the authorities in Punjab. 13 However, the Tribunal found that for the purpose of s 36(3) of the Act the appellant had a right to enter and reside in Nepal pursuant to the Treaty. 14 The Tribunal had regard to country information and considered the appellant was able to avail himself of the right to travel to and enter Nepal, a privilege which the Tribunal found was in practice rarely denied and enjoyed by many Indian and Nepalese citizens. 15 In considering the position under the Treaty, the Tribunal referred to the appropriate tests, referred to the authorities including SZRHU and identified, for example, that Article 7 of the Treaty provides that Indian nationals can enter and reside in Nepal. 16 The Tribunal considered available information that indicated that administrative arrangements relating to entry of Indian nationals allow them to enter Nepal without seeking a visa or other permission and that these arrangements apply under the Treaty. The Tribunal was unable to locate information that indicated the existence of practical barriers for Indian citizens being able to travel to and enter Nepal. 17 The Tribunal found that the appellant could apply for an Indian passport whilst in Australia and such passport would then evidence his right to travel to and enter Nepal. It considered the appellant could also access other suitable identification documentation. 18 It considered the appellant had not taken all possible steps to avail himself of that right of entry. It appeared to be common ground that the appellant had taken no steps to obtain identity documents in order to enter Nepal. 19 The Tribunal took into account that the appellant had never been to Nepal, did not want to go there and fears he may be harmed there. 20 It found that the appellant's claims that his former brother-in-law would be able to locate him in Nepal were far-fetched. 21 The Tribunal then considered that the appellant does not have a well-founded fear that Nepal will return him to India. The appellant was not at risk of persecution or significant harm by refoulement by Nepal. The Government of Nepal by the Treaty has agreed to grant Indian nationals reciprocal rights as to residence, ownership of property, movement and similar rights. 22 The Tribunal found that s 36(5) and 36(5A) of the Act are not enlivened. 23 For those reasons, the Tribunal concluded that Australia was taken not to have protection obligations in respect of the appellant and therefore he did not meet the criteria for the grant of a protection visa.

Reasons of primary judge 24 The grounds before the primary judge were as follows: 1. I need Australia's protection as my life will be in danger if I relocate in India which is the country of my origin. 2. If I relocate in a third country like, Nepal my life will still be in danger as I pointed out in my Affidavit attached to this application. 3. I will be safe in Australia as I have been living in this country for close to 10 years and I have resettled here securely and safely and am in close connection with the local community. 4. The Tribunal's position that I could relocate in Nepal constitutes a legal error as my life will continue to be in danger and hence Australia does have an obligation to protect me even from a third country like Nepal where I can be tracked down. (Copied from the Judicial Review Application without amendment) 25 The primary judge properly identified that the grounds did not identify any jurisdictional error in the Tribunal's decision. Regardless, the primary judge distilled and considered the arguments put forward by the appellant. 26 As to ground 1, the primary judge referred to the relevant law and reasoning of the Tribunal as to s 36(3) and s 36(4), noting that it was not necessary for the Tribunal to consider the protection criteria under s 36(2)(a) or (aa) of the Act, because it determined the appellant was able to enter Nepal. 27 As to grounds 2 and 4, the primary judge noted that the Tribunal had considered as a matter of fact whether the appellant had a well-founded fear of persecution or a risk of significant harm in Nepal for the purposes of s 36(4) of the Act and that it found, having carefully considered the available evidence, that those criteria were not established. Further, to the extent the appellant relied upon a submission that his life would still be in danger in Nepal because he could be 'tracked down', that submission did not suggest any legal error but was an attempt to secure an impermissible merits review. 28 As to ground 3, the primary judge properly noted that the appellant's present position in Australia is not relevant to the issues to be considered by the court. 29 Having considered that the grounds disclosed no jurisdictional error and that no jurisdictional error was apparent to the court, the primary judge dismissed the application.

Grounds of appeal 30 The grounds of appeal before me can be paraphrased as follows: (1) The Federal Circuit Court affirmed the Tribunal's decision not to grant a protection visa. (2) The Federal Circuit Court's orders constitute a jurisdictional error in that it affirmed the Tribunal's decision that the appellant can relocate to Nepal. (3) The appellant's life will still be in danger if he relocates to Nepal for the reasons outlined in his affidavit. 31 The appellant sought to rely on an affidavit on the appeal. The affidavit largely comprises submissions and accordingly I received it on that basis and have taken into account the matters raised. The Minister's submissions accurately summarise the contentions arising from the affidavit as follows: (1) The Tribunal did not address the safety to the appellant if he relocated to Nepal; (2) There is no mention of protection under the Treaty and the Treaty offers him no protection; and (3) The Tribunal gave him only 10 days to respond to relocation issues. 32 To those matters I would add for consideration the appellant's claim by way of his written submissions that recent articles in the media 'cast doubts on the viability of the friendship treaty' between Nepal and India since elections in February 2018. 33 The first ground of appeal does not allege any appealable error but is an (incorrect) assertion. In fact the primary judge found no jurisdictional error. 34 The second ground of appeal provides no particulars and it is open to being dismissed on that basis. However, I will address it on the assumption the affidavit purports to provide particulars. It can be addressed together with the third ground. 35 The Tribunal did in fact address the question of the appellant's safety if he relocated to Nepal. It devoted some 10 paragraphs to the issue ([44]-[54]). It took into account country information about the position of Indians who have moved to Nepal, and that there is some evidence of anti-Indian sentiment fuelled by a belief that Indians may be in a position to overly influence Nepali politics and the economy. It noted the appellant's claim that his former brother-in-law can find him anywhere and has money and contacts. The appellant claimed to have been visited by two unidentified Indian men, and relied on that visit as indicating his brother-in-law knew where he was in Australia. The Tribunal did not accept that evidence rose to evidence that his brother-in-law had found him and intended to harm him. The Tribunal noted the appellant has lived in Australia for some 10 years, that people know where he resides and that he has not been in hiding. The Tribunal took into account that the appellant would face hurdles in settling into a new life but that such difficulties did not enliven Australia's protection obligations. 36 In my view, the issue of safety was in fact addressed and the appellant's criticism of the finding as to his brother-in-law's capacity to locate him amounts to an attempt to secure a merits review. The primary judge correctly identified that a merits review was not open to the appellant and that remains the position on appeal: Wu Shan Liang; Attorney General for the State of New South Wales v Quin [1990] HCA 21; (1990) 170 CLR 1. 37 Further, the fact that the Treaty does not expressly deal with 'protection' is not to the point. The role of the Tribunal in considering s 36(3) and s 36(4) was made clear in SZRHU. The Tribunal in this case was clearly cognisant of the matters to be addressed and in fact addressed them, including the administrative matters relevant to entry to Nepal. Nothing in s 36(3) requires that a person be entitled to protection or otherwise to be recognised as a refugee in the relevant third country. In any event the Tribunal separately considered the issue of protection, as outlined above: it considered that the appellant does not have a well-founded fear that Nepal will return him to India and that the appellant was not at risk of persecution or significant harm by refoulement by Nepal. 38 In the circumstances, no error in the approach of the primary judge or his assessment of the task undertaken by the Tribunal is identified and his Honour was right to dismiss the application. 39 The assertion that the Tribunal gave the appellant only 10 days to respond to the issue of relocation in Nepal does not on its face give rise to jurisdictional error. The appellant did not provide any evidence to support his assertion or explain how it is said that such a period in any event led to any denial of procedural fairness. It is clear from the Tribunal's reasons that the issue of relocation to Nepal was raised by the delegate (which did not need to decide that issue, having decided that the appellant did not face harm if he returned to India). According to the Tribunal's reasons, the question of relocation was then raised squarely by it during the Tribunal hearing. The reasons indicate that the appellant said he was aware of the Treaty but said that Indians could pass freely across the border and find him (in Nepal). It is also apparent that the appellant provided additional information to the Tribunal after the hearing. These matters are supported by a close reading of the Tribunal's reasons, and in particular paragraphs [7], [8], [15], [31], [43], [50], [51] and [53]. 40 Finally, I address the assertion in the appellant's written submissions that the relationship between Nepal and India may have declined since elections in February 2018. No further country information was provided to that effect. In any event, post-Tribunal evidence in relation to a question of fact sought to be relied upon for the purpose of inviting the Court to disagree with a factual finding of the Tribunal is not admissible: Ozberk v Minister for Immigration and Multicultural Affairs [1998] FCA 12; (1998) 79 FCR 249; SZOIG v Minister for Immigration and Border Protection [2016] FCA 547 [26]-[27]. 41 For example, in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 the appellant, who had applied for a protection visa, sought to rely on country information developments in relation to the peace process in Sri Lanka since the relevant Tribunal's decision in an attempt to demonstrate that the peace process was more likely to fail than the Tribunal had found. The Full Court held that this was impermissible, stating (at [15]) that the appellant's submission is tantamount to saying that the Tribunal was wrong on the facts and that the Court should correct its factual error. It held that subsequent events could not be used to falsify the Tribunal's finding. 42 In those circumstances, the appellant's submission does not alter my conclusion that there is no apparent jurisdictional error by the Tribunal and no error disclosed by the primary judge. 43 In the circumstances the appeal is dismissed. I certify that the preceding forty-three (43) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Banks-Smith.