SZEAS v Minister for Immigration & Anor [2005] FMCA 1776

Delivered on 18 November 2005 as [2005] FMCA 1776

The above reasons are corrected by changing the citation of Thiyagarajah at [34] and under cases cited to:

Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

This is an application under s.483A of the Migration Act 1958 (Cth) seeking orders by way of judicial review of a decision of the Refugee Review Tribunal dated 15 June 2004 and handed down on 24 June 2004. The Tribunal affirmed a decision of a delegate refusing to grant a protection visa to the applicant.

The Court's jurisdiction under s.483A is the same as the jurisdiction of the Federal Court under s.39B of the Judiciary Act 1903 (Cth). Both are subject to limitations under Part 8 of the Migration Act, which have the effect that I do not have power to set aside the Tribunal decision and remit the matter unless I am satisfied that the decision was affected by jurisdictional error.

The application brought by the applicant, as amended, raises two issues. The first is whether the Tribunal was required, and failed, to address a claim by the applicant that he feared persecution if he returned to his country of nationality, Nepal, by reason of his membership of a particular social group, being a group consisting of or including people who worked for international non-government organisations in Nepal. Secondly, whether it also erred when affirming the delegate's decision upon a finding that the applicant "has effective protection in India".

Claim of fear by reason of membership of a particular social group

The applicant arrived in Australia in November 2003 on a two-week business visa. He applied for a protection visa with the assistance of a migrant agent on 27 November 2003.

The form of application directed the applicant, under the heading "Your Reasons for Claiming to be a Refugee":

You should answer all the following questions in your own words. You should tell us below everything about why you think you are a refugee. In answering the questions below, you should tell us if you think any events you refer to are because of:

•

your race

•

your religion

•

your nationality

•

your membership of a particular social group

•

your political opinion

•

other reasons

The applicant has ticked the words "your membership of a particular social group," "your political opinion," and "other reasons." He indicated that he was seeking protection in Australia so that he did not have to return to Nepal. In answer to the subsequent questions asking him to explain the circumstances for leaving that country and fearing to return, he attached a statement.

The applicant said that he had been working in "social service work since my childhood". He said he had participated in community-based development training and human resource training, had assisted United Nations International volunteers in a United Nations program in Kathmandu for four years, and had then being appointed to work for another four years in a project in a district supported by the United Nations Development Fund and other donor agencies. He then gave his history in relation to more recent years:

1993-1996

I got the opportunity to participate in another UNDP project named "NEP 91/041/42 Local Government Organization Strengthening in Mid Western Region". The main objective of this project was to encourage the residents of mid and western Nepal to participate in social development programs through establishment of non-governmental and other community organizations.

During my participation in this project in the district of ..., I was accused by the local Maoists for encouraging the local youths to participate in development programs organized by foreigners and hence depriving them of the support of the youth in their own activities. I was subsequently warned several times by the Maoists to cease the continuation of the project to leave the district. I reported the threats made by the Maoist workers to the local police after some of them were held in custody. However, due to the increased threats for being an "informant" and possibly risk of my well being, I was called to [town] to continue my work at the Regional Headquarters.

1997-Present

The Project office was closed in December of 1996. After that I was an involved Village Community Development program in the districts of ..., organized by HELP Nepal. We continued working on the project through our office in [town] even after the further escalation of the Maoist problem in the country during this period. Around the end of May 1997 several Maoists activities turned up at our office and demanded "donations". We cited the poor financial situation of the organization and declined to make the payments. The Maoists threatened us of dire consequences if their demands were not made during their next visit. The appeared at the premised again in the following week at 9 o'clock in the evening and destroyed the entire property of the organization and physically assaulted [3 named persons] who were present there at that time then left after delivering further threats. The Maoists' agenda became more aggravated after the former Prime Minister, Mr Sher Bahadur Deuba, declared them terrorists and put prices on the heads of their leaders. Both the government and the Maoists started killing each other and civilians and human rights workers indiscriminately.

I reported to the police about the physical destruction of the physical infrastructure of the organization by the rebels. After completely shutting down the [town] office, we continued our social development programs from our Kathmandu office at [suburb]. In July of 2001, I received a female visitor who wanted to speak to me outside. As soon as I went outside, I was asked what my name was. As soon as I told her who I was, I was suddenly surrounded by about five men and physically assaulted. During the assault, one of them pointed out that this beating was because of my earlier reports to the police and that they wouldn't leave me alive. I started shouting for help and passersby started to gather after which the Maoists ran away. I lost my front tooth during the assault and received several bruises all over my body including one on my left foot, the scars of which are still present today.

I had severe mental stress after this incident. I could not go back to work for several weeks. Being a person only involved in social service work, I had not anticipated this kind of action by rebel activists. After this incident I received several death threats over the phone. I went into hiding and moved from one place to another hoping that the situation in the country would improve one day. Unfortunately, the Maoist situation has deteriorated continually and innocent civilians are being injured and killed day after day often by cruel and crude means. Having lost any hope of a quick resolution of the conflict and fearing for my own life, I have been forced to leave my home, family and country and to seek protection visa here in Australia.

In light of above, I request to the Department to consider my application positively.

In my opinion, the applicant's statement clearly indicated that his claim for protection was based in part on his membership of a particular social group, being workers for NGOs or "human rights workers". He referred to Maoists targeting such people at their offices indiscriminately, as well as for their personal activities in their work. In my opinion, a decision-maker addressing his claim was required to address both aspects.

A delegate refused the application on 17 February 2004, giving very short reasons. One reason was:

His claimed circumstances arose because of criminal activities perpetrated against him by Maoists in Nepal, and because of his action in reporting the Maoist activity to the police. There is no reason whatsoever to believe he will be singled out for any adverse treatment upon his return to Nepal for a Convention reason.

In my opinion, this reflected an inadequate analysis of the claims made by the applicant, and I consider it possible that the Tribunal was influenced by the inadequacy, as I shall show below.

The applicant appealed to the Refugee Review Tribunal on 3 March 2004, assisted by a different agent. Attached to his application was a statement by the president of HELP in Nepal, which said:

To whom it may concern

Mr [applicant] is the Founder member and Treasures of this Social Organisation. He is one of the renowned social worker of Nepal who is also serving this organization as a Assistance Director. Since the foundation of this organization he has been working in different field of community development works in different part of Nepal.

I would like to draw this incident which was happen on may 1997 when he was working in the [town] office, which is western part of Nepal, been asked for donation by Maoist which is illegal. When they were rejected, they started hitting Mr [applicant] and other office staffs all brutally and destroy all the equipment of the office as well.

Similarly, in 10th of July 2001 second terrifying incident happen at [suburb] in Kathmandu office, which is capital of Nepal, Mr [applicant] has been attacked by same Maoist group in the office venue. Here I would like to draw your attention on the nature of attacked was attempt to kill, as those group were denied by Mr [applicant] before for illegal donation and early report to police. He was hospitalized for week.

Since after he quit all the work and live as a simple citizen by still he wasn't left to survive in peace. This made him even hard to live and survive in his own country.

The applicant subsequently forwarded to the Tribunal country information concerning the situation in the Nepal, which had deteriorated after the breakdown of talks between the Maoists and the government in 2003. This information included reference to the fact that the Maoists had "targeted political leaders, local elites and suspected informers" and that in recent years they had targeted people deemed to be associated with foreign organisations. A report presented from "Global Security.org" included these paragraphs:

On 30 April 2003, the US put the CPN (Maoist) / United People's Front on its list of terrorist organizations. In 2002, the Maoists claimed responsibility for assassinating two US Embassy guards. In a press statement, they threatened foreign missions, including the US Embassy, to discourage foreign governments from supporting the Government of Nepal. Maoists, targeting US symbols, also bombed locally operated Coco-Cola bottling plants in November 2001, and in January and April 2002. In May, Maoists destroyed a Pepsi Cola truck and its contents.

...

Maoists have attacked the offices of several non-governmental organizations (NGO's), their local partners, and multinational businesses working in Nepal. NGO workers report widespread harassment and extortion by rebels. Some workers have left their projects in rural areas because of concerns about possible rebel violence and in response to Maoist threats. A statement by the Maoists on October 21, 2003, threatened attacks against or disrupt of international non-governmental organizations and non-governmental organizations funded by "American-imperialism."

The reference in the last paragraph to "widespread harassment and extortion" of NGO workers was highlighted in the applicant's submissions to the Tribunal. In my opinion, it gave substance to the "particular social group" claim which I have identified above in the visa application. This was a claim that the applicant feared, not only by reason of his personal history of contacts with Maoists, but also generally by reason of characteristics shared with other NGO workers.

At the commencement of its decision, the Tribunal referred to the provisions of s.36 of the Migration Act concerning refuge in safe third countries. I shall consider the Tribunal's analysis in this area further below.

Under the heading, "Claims and Evidence," the Tribunal accurately summarised the material which was before it. However, this summary did not contain any analysis of the applicant's claims. No attempt was made to identify all reasonable bases for characterising the harms claimed by the applicant in the past by reference to one or more of the Convention reasons of "race, religion, nationality, membership of a particular social group or political opinion".

The Tribunal then referred to background information concerning Nepal. This was consistent with the information put forward by the applicant, and included a recent report in February 2004 which said:

During the year, including the ceasefire, Maoists continued their campaign of torturing, killing, bombing, forcibly conscripting children and committing other gross abuses, targeted at Government agents but also including civilians.

During the year an estimated 1697 persons were killed.

The Tribunal then discussed some information under the heading, "Effective Protection in India," which I shall describe further below.

Under the heading, "Findings and Reasons," the Tribunal said:

I found the applicant to be a generally credible and truthful witness at the Tribunal hearings.

It accepted his history of work as a community-development officer, and that this had brought him into confrontation with Maoist rebels. It accepted his account of threats which intensified. It accepted his account of his project office being closed in 1996, and his account of the incident at his office in May 1997. It accepted that he was attacked outside his office in July 2001, and that he "suffered serious injuries of both a physical and psychological nature". It accepted as genuine the letter from HELP Nepal.

It also said: "I also accept the independent evidence submitted by the applicant to the effect that Maoist rebels have sometimes targeted the offices of NGOs" (my emphasis). I consider that it is significant that at this point in its reasoning it made no reference to the material suggesting the Maoists were targeting people because they were identified as workers for NGOs. If it had addressed this element more fully, it might then have appreciated that the applicant had claimed to have been one such worker, and feared by reason of his membership of a group of people who were susceptible to attack by reason of that membership.

Instead of this, the Tribunal performed an analysis of the applicant's history which was confined to his individual history of being targeted as an individual. It said:

As discussed with the applicant at hearing, it is difficult to understand why the Maoists would have waited some six years to retaliate against him for giving information to the police which led to the arrest of some Maoists. Even if I accept that the incident in May 1997 was linked to the applicant's earlier actions, then the period between the two incidents is still more than four years. While I accept that the two incidents occurred, this evidence does not suggest that the Maoists were seriously targeting the applicant throughout this period because of his earlier actions.

In this regard I do not accept the applicant's evidence to the effect that until the incident at his office in July 2001 he had managed to avoid being located by the Maoists for the four years he was in Kathmandu by 'moving around' and being 'in-hiding'. On his own evidence the applicant stayed at least six months at any one place, and even if I accept that he often worked from home I am of the view that if Maoist rebels had a serious adverse interest in the applicant throughout this period they could have located him at home. I therefore find that the assault on the applicant at his office in July 2001 was a one-off attack which represents the extent of the Maoists' intention to harm the applicant or to take revenge against him.

I find that the fact that no further confrontations occurred from July 2001 until November 2003 when the applicant left Nepal provides strong evidence that the Maoists did not have a serious adverse interest in the applicant in the period before he left Nepal. As indicated above, I find the applicant's explanation that he was not located again because he did not live in any one place for longer than six months to be unconvincing given the methods of operation of the terrorists he claims to have feared. I find his claim that he only went to his office an average of two days each week after the incident in July 2001 fails to explain why no further confrontations occurred, if in fact the Maoists had such an adverse interest in the applicant that they would now kill him if he returned.

I similarly find unconvincing the applicant's claim at hearing that threatening telephone calls were made to his office for more than two years before he left Nepal. I do not accept that if Maoist terrorists knew where the applicant worked, and had a serious adverse interest in him, they would have simply called his office on many occasions, threatening either the applicant or a colleague, but taking no further action. I find such conduct by members of a violent rebel group to be highly unlikely. Moreover I find the fact the applicant continued living in Kathmandu rather than seeking safety elsewhere in Nepal does not suggest that he had a serious fear for his own safety throughout this period.

The Tribunal then stated a conclusion, the reasoning for which is obscure. It said:

For these reasons I am not satisfied the applicant has a well-founded fear of being persecuted within the meaning of the Convention if he were to return to Nepal.

In my opinion, on a proper understanding of the Tribunal's reasoning and applying the injunctions in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 277 and 291, the Tribunal has overlooked and failed to address an important element of the applicant's fears of the Maoists both while he was still in Nepal, and also of his fears of returning there. This was that his fears related not only to specific incidents in his own history, but also to his general membership of a group of people who he claimed were at risk of being targeted by Maoists.

Its confined consideration of the applicant's claims becomes apparent if its reasoning is read carefully. This consisted of an examination only of the particular attacks on the applicant. The 2001 attack was characterised as a "one-off attack which represents the extent of the Maoists intention to harm the applicant or to take revenge against him" (emphasis added).

The Tribunal then analysed the period July 2001 to 2003, and found that it provided evidence that the Maoists did not have a serious adverse interest "in the applicant" in the period before he left Nepal.

The Tribunal then found that his fears of going to the office "fails to explain why no further confrontations occurred, if in fact the Maoists had such an adverse interest in the applicant that they would now kill him if he returns" (emphasis added). The Tribunal did not address in that paragraph the applicant's concerns arising from generally shared characteristics with other workers, but addressed purely his personal experience at the hands of the Maoists.

Similarly, in the final paragraph in its analysis of the material, it arrived at a doubt that in more recent years the Maoists "had a serious adverse interest in him" (my emphasis). The Tribunal did not address whether he was at risk over that period or in the future by reason of his membership of the group he claimed to belong to. It had limited its consideration of the "well-foundedness" of his fears to his past episodes of personal targeting in retaliation for his personal actions as a NGO worker.

In my opinion, only by understanding the confined nature of the Tribunal's analysis of the applicant's history, does it become possible to understand how the Tribunal could have stated its conclusion negating "a well-founded fear of being persecuted within the meaning of the Convention" without providing further analysis of the evidence. If it had properly appreciated the existence of a claim based on membership of a group, it would have shown some attention to the task referred to by McHugh and Kirby JJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473:

[31] In a case like the present, defining the particular social group and the type of harm feared is fundamental in determining whether a member of that group has a well-founded fear of persecution. Only by defining the group and its characteristics or attributes, actual or imputed, can a tribunal of fact determine whether the harm feared is well-founded and is causally related to the particular social group.

In my opinion, the Tribunal was obliged to address the applicant's position as a member of the group that he claimed to belong to, and to decide whether it supported his fear of returning to Nepal. In this case, I am persuaded to infer from the absence of discussion of this element of his claim in its reasons, that the Tribunal did overlook it (c.f. Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [35], [69], [75], and WAEE v Minister for Immigration (2004) 75 ALD 630 at [47]).

A failure to address a claim to belong to a particular social group can give rise to jurisdictional error. The authorities concerning this were recently set out by me in SZEEX v Minister for Immigration & Anor (2005) FMCA 359:

5. The further amended application pleads four grounds of review which vitiate the Tribunal's decision, but they amount to one contention which is based on well established authorities. This is that the Tribunal made a jurisdictional error by failing to deal with a substantial claim for refugee status made by the applicant which remained open on evidence which was not rejected by the Tribunal.

6. The relevant principles were recently examined in the Full Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263. Their Honours held at [48-51] and [55] that failure by a Tribunal to make a finding on "a substantial, clearly articulated argument relying upon established facts" can amount to jurisdictional error by failure to carry out the review required by s.415 of the Migration Act. At [63] they said:

"It is plain enough, in the light of Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant's claim, may be of no consequence to the outcome."

7. Their Honours said at [68] that "a judgment that the Tribunal has failed to consider a claim not expressly advanced is ... not lightly to be made. The claim must emerge clearly from the materials before the Tribunal".

8. Allsop J has given further guidance in NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695 at [15]:

"From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy."

9. In SGBB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 709; (2003) 199 ALR 364, Selway J considered a contention that a Tribunal failed to address a claim to refugee status based on fears resulting from being a member of a particular social group and had addressed the fears on the basis only of other "Convention reasons" of ethnicity and race. At [17-18] his Honour refers to Dranichnikov (supra) and said:

"Indeed, that case serves as an example of how the nature of the case as actually put can affect the obligation of the tribunal in identifying the relevant social group. In that case the majority of the High Court were prepared to identify the relevant social group from the evidence and material put before the tribunal by the applicant to explain his relevant "fear" by reference to the "peculiar circumstances that had impinged on his life": see Dranichnikov at [63].

The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it."

10. Selway J concluded that the case presented by the appellant did identify aspects of his situation as part of a claim to protection on the basis of a membership of a particular social group, and that the Tribunal had made jurisdictional error by failing to consider the issues which were identified by Gummow and Callinan JJ (Hayne J agreeing) in Dranichnikov (supra). Their Honours said at [26]:

At the outset it should be pointed out that the task of the tribunal involves a number of steps. First the tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well founded, and if it is, whether it is for a Convention reason.

11. In Applicant S v Minister for Immigration & Multicultural Affairs [2004] HCA 25, 206 ALR 242, the High Court considered a conclusion by a Tribunal that a young Afghan avoiding recruitment by the Taliban was "not targeted to the extent that he was listed or registered for recruitment by the Taliban but was merely seen as a young man who was available in that area at that time and, in the random manner of such an ad hoc drive he was able to avoid recruitment for a second time". A majority upheld a conclusion of Carr J at first instance that this showed the Tribunal concluding that the appellant was not targeted by reason of any political opinion or religious beliefs, but had failed to consider "whether able bodied young men (or possibly able bodied young men without the financial means to buy off the conscriptors) comprised a particular social group within the meaning of the Convention", and "whether because of legal, social, cultural and religious norms prevalent in Afghan society, young able bodied men comprised a social group that could be distinguished from the rest of Afghan society" (see [13], [50-51], [77]).

12. The circumstances in Dranichnikov (supra) also have similarities to the present, since the present applicant argues that his claims raised for consideration whether his fears of extortion and violence at the hands of Nepalese Maoists were by reason of his membership of a class comprising successful Nepalese businessmen, and, in particular, businessmen personally known to the Maoists. He argues that the Tribunal addressed the Convention relationship of his fears only on the basis of his political opinions and membership of a political party.

13. In Dranichnikov, the Tribunal did address whether the appellant had well founded fears of criminal attacks for reason of being a "businessman in Russia". However, the majority of the Court held that it had failed to address "the matter which was put to it" which was that he was a member of a narrower "social group consisting of entrepreneurs and business men who publicly criticised law enforcement authorities for failing to take action against crime or criminals" (see [18], [23], [27], [63-4]).

14. In the present case, for the reasons I shall explain below, I have concluded that the Tribunal overlooked that the applicant's initial claim to refugee status was principally a "particular social group" claim related to his characteristics as a businessman known to the Maoists. The Tribunal assessed his fears of extortion and violence by considering whether they were the result of his political opinions and political associations, and did not ask itself the questions identified in Dranichnikov (supra) at [26] which I have set out above. I cannot be satisfied that, if it had asked itself these questions, it would still have affirmed the delegate's decision.

In my opinion, in the present case there were elements in the applicant's claims which arose "tolerably clearly" and which were not addressed by the Tribunal. The Tribunal, in my opinion, was obliged to consider the position of the applicant if he returned to Nepal by including a consideration of the elements of a claim relating to particular social group which are referred to in Applicant S and Dranichnikov.

For the above reason, I consider that the Tribunal made an error which is capable of constituting jurisdictional error and allowing relief to be given by the Court. This is, however, dependent upon my being satisfied that the Tribunal's refusal to be satisfied that the applicant had a well-founded fear of being persecuted if he returned to Nepal constituted a material reason for its affirming the delegate's decision.

Counsel for the Minister contended that this conclusion was not material to the Tribunal's conclusion, due to its conclusion in the second part of its reasons that

In addition, for the reasons that follow, even if I were to accept that the applicant might face some risk of harm from Maoists if he returned to Nepal, I am satisfied he has effective protection in India.

To understand this conclusion it is necessary to return to the Tribunal's earlier discussion of the law in relation to safe third countries.

The Tribunal under the heading, "Protection Obligations," referred to s.36 as follows:

"PROTECTION OBLIGATIONS"

Subsection 36(2) of the Act, which refers to Australia's protection obligations under the Refugees Convention, is now qualified by subsections 36(3), (4) and (5) of the Act. These provisions apply to protection visa applications made on or after 16 December 1999. They provide as follows:

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.

The term "right" in subsection 36(3) refers to a legally enforceable right: Applicant C v Minister for Immigration & Multicultural Affairs [2001] FCA 229.

This means that where a non-citizen in Australia has a legally enforceable right to enter and reside in a third country, that person will not be owed protection obligations in Australia if he or she has not availed himself or herself of that right unless the conditions prescribed in either s.36(4) or (5) are satisfied, in which case the s.36(3) preclusion will not apply.

In determining whether these provisions apply, relevant considerations will be: whether the applicant has a legally enforceable right to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; whether he or she has a well-founded fear of being persecuted for a Convention reason in the third country itself; and whether there is a risk that the third country will return the applicant to another country where he or she has a well-founded fear of being persecuted for a Convention reason.

Where an applicant does not have a legally enforceable right to enter and reside in a third country, Australia will nonetheless not have protection obligations to that person if he or she is likely to be given effective protection in that country: S115/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 540; (2001) 180 ALR 561.

"EFFECTIVE PROTECTION"

For the purposes of s.36(2) of the Act, Australia's protection obligations to Convention refugees are subject to certain qualifications, explained in Minister for Immigration & Multicultural Affairs v Thiyagarajah (1998) 80 FCR 543 and subsequent cases. In Thiyagarah the Full Court held that Australia does not have protection obligations to a person who has been accorded effective protection 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 or freedom would be threatened for one of the five Convention reasons. If, "as a matter of practical reality and fact", an applicant is likely to be given "effective protection" in a third country by being permitted to enter and live in that country where he or she will not be at risk of being returned to his or her original country, Australia can (consistently with Article 33) return the applicant to that third country without considering whether he or she is a refugee: Minister for Immigration & Multicultural Affairs v Al-Sallal [1999] FCA 1332; (1999) 94 FCR 549. In determining whether an applicant has effective protection in a third country relevant considerations will usually be: whether the applicant will be permitted lawfully to reside in, enter and re-enter the third country; whether there is a risk that the third country will return the applicant to his or her country of nationality; and whether the applicant has a well-founded fear of persecution in the third country itself.

It is apparent from this discussion that where the Tribunal used the words "effective protection" in this discussion and subsequently it was invoking the principles explained in Minister for Immigration and Multicultural Affairs v Thiyagarajah [2000] HCA 9; (2000) 199 CLR 343 and was not referring to issues arising under s.36(3). It clearly draws a distinction between the pathway of the statutory provision in s.36(3) requiring, in its opinion, a finding on whether a citizen had "a legally enforceable right to enter and reside in a third country", and the alternative and less demanding pathway under Thiyagarajah of whether "as a matter of practical reality in fact an applicant is likely to be given effective protection in a third country".

Later in its statement of reasons, the Tribunal included a heading "Effective Protection in India" in its discussion of relevant country information. It introduced this material by saying:

independent evidence before the Tribunal indicates that citizens of Nepal can enter and reside in India without any difficulty.

I find it impossible to read the Tribunal's reference to "can enter" at this point and subsequently in this discussion as indicating a finding by the Tribunal that Nepalese people had "an enforceable legal right" to enter and reside in India. This is because the material that the Tribunal extracted relevant to this issue did not establish such a right.

The Tribunal referred to a treaty of peace and friendship which "allows" Nepalese to enter India. But the articles extracted from that treaty only provided government undertakings of equal treatment to each other's nationals who were "in its territory", i.e. assuming that they had obtained entry for residence by some un-stated means. There is no identification of any provision conferring on each other's nationals an enforceable right of entry, however one might understand the word "enforceable".

The material identified by the Tribunal also made reference to "a free flow of people and goods between the countries." But "free flow" may occur without enforceable rights of entry, and this information did not prove legally enforceable rights.

The Tribunal also referred to recent advice from the Department of Foreign Affairs which said:

A..1: INDIAN MINISTRY OF HOME AFFAIRS (MHA), FOREIGNERS' DIVISION, HAS CONFIRMED THE INDIA-NEPAL TREATY OF PEACE AND FRIENDSHIP CONTINUES TO APPLY. THE REFERENCE IN IATA'S TRAVEL INFORMATION MANUAL TO 'TOURISTIC PURPOSES' IS INCORRECT. THERE HAVE BEEN NO RECENT CHANGES TO INDIAN GOVERNMENT ENTRY PROVISIONS. THERE IS NO CLASSIFICATION SYSTEM IDENTIFYING CERTAIN CLASSES OF NEPALI NATIONALS (OR CERTAIN CIRCUMSTANCES CONCERNING THEIR ENTRY INTO INDIA) WHICH WOULD RESULT IN REFUSAL OF ENTRY. INDIAN GOVERNMENT PROVISIONS COVERING REFUSAL OF ENTRY TO INDIA APPLY TO ALL NATIONALITIES INCLUDING CITIZENS OF NEPAL.

This cable suggested that the Indian Government had preserved its legal right to refuse entry to Nepalese citizens, rather than that it had conferred on Nepalese people a "legally enforceable right" of entry.

In my opinion, the Tribunal's ultimate reasoning about the position of the applicant in relation to relocation to India becomes very plain once it is understood in the context of the Tribunal's discussion of the law and the country information which I have set out above. It said:

As outlined at pages 4-6 above, Australia does not have protection obligations to a person who has effective protection in a third country. I must consider whether the applicant has a legally enforceable right to enter and reside in a third country or whether, as a matter of practical reality, the applicant is likely to be given " effective protection" in a third country by being permitted to enter, re- enter and live in that third country where he will not be at risk of being returned to his original country. If the applicant has such effective protection already available to him, then Australia can return the applicant to that country.

As noted at page 10 above I discussed with the applicant the concept of 'effective protection' under Australian law and the independent evidence before me in relation to India (see pages 14-16 above). That evidence indicates that as matter of practical reality the applicant, as a citizen of Nepal, can enter, re-enter and live in India, with most of the rights and privileges available to nationals of India and without any fear of being returned to Nepal. Although the applicant has visited India on four occasions, I accept that he has never stayed in India for long periods and that he has no real connections with that country. The applicant expressed concern at a Maoist presence in India, and submitted that Nepali Maoists have been responsible for recent bombings and other attacks in India.

I can see only one possible reading of the above reasoning. The Tribunal in its opening sentences referred back to the alternative pathways under s.36(3) and Thiyagarajah. However, it clearly found it unnecessary to make any findings of fact as to the existence of a legally enforceable right of the applicant to enter India. Rather, it followed the easier pathway of looking at the "practical realities" so as to find 'effective protection' under the doctrine of Thiyagarajah. It is entirely understandable that it followed that path.

However, subsequently, the High Court overruled the Thiyagarajah doctrine in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6. The Tribunal's conclusion that Australia owed no protection obligations by reason of that doctrine was, therefore, also seriously flawed by legal error, and cannot provide justification for my withholding the relief sought by the applicant.

Counsel for the Minister endeavoured to avoid this conclusion by, in effect, arguing that the Tribunal might have found that the applicant came within s.36(3) if it had asked itself the correct questions. But the plain fact is that it did not make findings of fact which either purported to address that provision, nor are capable of being read as addressing it. The Tribunal made no finding that the applicant had an enforceable right of entry to India. Nor did it make any finding, necessary under s.36(3), on whether the applicant had taken "all possible steps to avail himself" of such a right.

The Minister's counsel also sought to interest me in an argument revealing error in the proposition that the reference to "right" in s.36(3) should be construed as "a legally enforceable right". However, this was established by Minister for Immigration and Multicultural Affairs v Applicant C [2001] FCA 1332; (2001) 116 FCR 154, which is a long-standing Full Court decision which is binding upon me, as it was binding upon the Tribunal (see paragraph 62 in the judgment of Stone J which had the approval of Gray and Lee JJ, and upheld the opinion of the primary judge expressed at paragraph 35).

In my opinion the Tribunal has plainly failed to ask itself correct questions in relation to the application of s.36(3), and its decision cannot be upheld on the basis of its findings concerning "effective protection."

For the above reasons I consider that the Tribunal's decision is affected by jurisdictional error, and that the applicant is entitled to the relief sought.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Smith FM